Now more than ever, the Canadian justice system is taking a hard line against domestic violence, and has for the first time, included a definition and extensive provisions dealing with family violence in the new Divorce Act [Act], which was scheduled for July 1, 2020. (Due to the extraordinary circumstances surrounding the COVID-19 pandemic, the coming into force date has been deferred until March 1, 2021.)
In the new Act, family violence means “any conduct any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property; (violence familiale).
This significantly expands the definition of family violence through legislation which is important because it means the courts are bound to follow and apply this new definition. This means that even if no physical violence has occurred, and no criminal charges have been laid, a court can still rule that within your family law/ divorce proceedings, family violence has still occurred.
It is important to note that this definition is for divorce matters, but not pursuant to criminal law – as the Criminal Code still uses its own definitions of violence. However, in your family law case, patterns of controlling behavior or financial abuse, for instance, which makes another family member fearful, can now be classified as family violence, and will impact parenting matters. A Judge will determine the best interests of the children and the parenting schedule after considering whether family violence has occurred, and its impact on the child.
Another important legislative tool to combat family violence is the provincial Protection Against Family Violence Act, RSA 200, C P-27. This legislation is available as a remedy for all Albertan families, not just those going through a divorce. The definition in this legislation also is quite broad, but not as expansive as the new Divorce Act, as the objective of this legislation is to provide urgent remedies but more temporary in measure. The Act allows a family member to obtain emergency protection orders (EPO) in the face of violence, threats of violence, stalking, and other forms of threatening behavior and our violence. Once a court grants an EPO, it will then be sent to another court within 9 working days to determine whether the EPO shall be confirmed (and turned into a protection order) or vacated.
The Alberta court system has also put in place available parenting courses for families to take, such as the Parenting After Separation for Families in High Conflict, to provide both parties skills in how to deal with high conflict situations. Sometimes as well, the court will mandate that a parent take an anger management course or domestic violence prevention course, in order to help address any family violence within the family.
If you would like more information on family violence or have been involved in a situation and need help understanding your rights and responsibilities and options, Vogel LLP has lawyers that are available to help navigate you through these difficult times.