Divorce Act changes, new family violence tort, highlight shifting legal landscape

Changes to the Divorce Act and a recent case where a woman was awarded $150,000 in damages for domestic violence signal that this type of abuse will be taken more seriously in the family law context.

Let’s begin with the legislative changes to the Divorce Act that were enacted in March of 2021. The Act now defines violence to include any behaviour that is:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour, or
  • conduct that causes a family member to fear for their own safety or the safety of another person.

Many types of abuse are criminal offences, but under the Divorce Act, the behaviour doesn’t have to be criminal to be considered family violence. For example, it is not a criminal offence if one party controls all the money in a relationship so that their partner is financially dependent on them, but it does meet the definition of family violence under the Divorce Act.

Courts consider impact of violence on parenting

The changes to the Act are also expected to impact decisions on parenting matters. The legislation stipulates that judges, in determining the best interests of a child, must take into account the impact of family violence when deciding on parenting arrangements. The law recognizes the impact domestic violence has on victims and on children.

The court must consider several factors when it comes to the impact of family violence, including:

  • the nature, seriousness and frequency of the family violence and when it occurred
  • whether there is a pattern of coercive and controlling behaviour toward 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 safety risk of the child or other family member
  • whether the family violence causes the child or other family members to fear for their own safety or 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 the child.

It is hoped that these new provisions in the Divorce Act will bring positive changes for people who have experienced domestic violence, particularly when it comes to parenting issues. One of the biggest challenges for some parents following divorce is that they have co-parent with their abuser.

Landmark legal decision

Next, let’s turn to a 2022 decision that saw a judge award $150,000 in damages to a woman who endured a 16 “year pattern of coercion and control” during her marriage. The case is significant in that it established the tort of family violence and set out the legal requirements for liability.

This matter, Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII), states that to establish liability on a civil standard, the plaintiff must show the conduct within the family relationship is:

  1. violent or threatening
  2. constitutes a pattern of coercive and controlling behaviour, or
  3. causes the plaintiff to fear for their own safety or that of another person.

The key difference between this new tort of domestic violence and others that already exist is it would allow survivors to bring evidence of emotional abuse from the entire courtship of their relationship — as opposed to a single event only.

“The tort of family violence will give survivors an avenue to pursue both accountability and financial independence … through a single, family law proceeding. The promise of significant financial compensation could make it more realistic for some women to leave violent relationships,” writes Judge Renu J. Mandhane.

One in four women experience partner violence

To provide some context around the incidence of domestic violence, it’s important to point to the statistics.

A recent worldwide analysis shows that one in four women (27 per cent) experience intimate partner violence before the age of 50. This analysis, led by researchers from McGill University and the World Health Organization, looked at 366 studies involving more than two million women in 161 countries. While this research found Canada to be among the top 30 countries with the lowest rates of intimate partner violence, the problem still affects one in 25 women.

For anyone experiencing domestic violence, there are legal actions you can take to protect yourself, including:

  1. restraining orders: These prohibit someone from contacting you directly or indirectly.  Breaking this type of order would have criminal consequences and can be enforced by the police.
  2. other court orders: Orders that limit your contact with your spouse. These are not as strong as a restraining order but aim to limit contact. Some examples:
    1. restrict communication to text only – the goal is to prevent harassing telephone calls
    2. parenting time exchanges could be supervised – so that the victim does not need to see the abuser at exchanges.
  3. exclusive possession of the matrimonial home: This allows one person to stay in the home. The person who leaves does not lose their financial right to the home — only their right to possession until their family law matter is resolved.

If you or someone you know is experiencing intimate partner violence, click here for more information about what to consider when leaving the relationship. If you or someone you know is in immediate danger, call 9-1-1 or your local police.

Darlene Rites

Darlene Rites