Two of the key objectives of the amendments to the Divorce Act in Bill C-78 – as outlined in the preamble to the bill – are to establish a non-exhaustive list of criteria with respect to the best interests of the child and to assist the courts in addressing family violence.
By providing a detailed definition of family violence, by stating that the best interests of the child must come first and by mandating that the impact of family violence on a child must be taken into account when deciding what is in the child’s best interest, the Canadian government has required all of us to give the safety and security of children paramount consideration. There are, moreover, provisions in the amendments that also require us to consider the effect of family violence on a party and the children when determining issues arising out of separation, and provide the court with argument when certain procedures – such as the requirement to provide notice of a relocation – should be modified or dispensed with altogether because of a risk of family violence.
In order to assist lawyers and the courts in addressing family violence, the amendments include a detailed but not exhaustive, definition of “family violence” as follows:
“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.”
This expansive definition is very important and should serve to remind all of us of the many different ways a person can be subject to coercive or controlling and other behaviour – that could affect how he or she reacts to and resolves the issues that arise out of separation.
Further, it is important to remember that among the many factors to be considered when determining what is in the best interests of the child, Bill C-78 has included in the new sub-section 16(3):
“(j) any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.”
Where family violence is a factor, the amendments provide a further list of factors to guide the court in considering the impact of family violence in subsection 16(4), as follows:
“(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
- the nature, seriousness and frequency of the family violence and when it occurred;
- whether there is a pattern of coercive and controlling behaviour in relation to a family member;
- whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
- the physical, emotional and psychological harm or risk of harm to the child;
- any compromise to the safety of the child or other family member;
- whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
- any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
- any other relevant factor.”
What is evident from these amendments is that we all need to know how to screen for domestic violence. It is important to pay a conscious attention to all types of situations that can in fact be a situation of family violence, identify it, recognize it and its effect on that specific family, and provide appropriate assistance.
Without screening for family violence, a party may be at risk of harm or at the very least not in a position to resolve issues arising out of the separation in a fair and proper manner, due to fear of harm or feeling oppressed. We should be aware of the existence of the domestic violence so that any necessary procedural steps to address the abuse and protect the fairness of the process. That way, we will be in a better position to know if there are any immediate safety concerns and discuss and plan a process with the client including, if necessary, making any referrals for services to assist the client.
Some lawyers may not use a domestic violence screening tool but believe they are screening in the interviews they conduct. While some may be adept at an informal screening, the use of a formal screening tool will ensure that any risk to the client can be identified. The “MASIC-4” (“Mediator Assessment of Safety Issues and Concerns”, Holtzworth-Munroe et al., 2010) is a detailed screening tool that will assist in assessing whether any domestic violence does exist within the family. It is one tool that exists and does provide an in-depth story of the client’s life that will help in understanding the needs of the specific client.
However, not all lawyers are aware of where to locate and/or use any screening tool. In an effort to help family law lawyers identify and respond to family violence, Justice Canada is working on developing an online course on family violence, as well as a new screening tool and an evidence-based guide for lawyers to help us identify possible victims of family violence and understand how to respond once identified. This is important, as clients don’t always reveal whether there is a history of violence in their family and, further, whether what they are experiencing is in fact family violence. It is important that the lawyer they go to for assistance can identify family violence and be able to direct the client toward appropriate support services, while developing a suitable strategy for the management of his or her case.
The courts are mandated in the amendments to the Divorce Act to take family violence into account when making decisions about the family before the court. It follows that in order to properly assist the client, all lawyers should properly assess for possible family violence, and, if it exists, create a process that will ensure the safety of the client. Although its detailed groups of questions may appear daunting to a client, using a tool such as the MASIC-4 as part of any intake process will certainly help. Keeping a watch on the Justice Canada website for the new screening tool and online course is another way we can work towards assessing the client and utilize the new provisions in the amendments to the Divorce Act to help our clients resolve issues from their separation in a safe manner.
Katherine Batycky is Counsel, Stoner & Company Family Law Associates in Burlington, Ontario.