e-3657 (Justice)

Family violence can happen before, during or after a couple separates. People are often at higher risk of family violence soon after a separation. Amendments to the Divorce Act that came into force on March 1, 2021, include changes aimed at promoting safe and appropriate responses in cases involving family violence.

Family violence can take many forms and can cause significant harm to both victims and witnesses. Therefore, the legislation provides a broad definition of family violence. For the purposes of the Divorce Act, family violence is defined as conduct towards a family member, including a child, that is violent or threatening, that constitutes a pattern of coercive and controlling behavior, or that causes a family member to fear for their own safety or for the safety of another person. Within this definition, family violence includes physical, sexual, psychological, and financial abuse; harassment and stalking; and threats to kill or harm an animal or to damage property, or actually causing that harm. In the case of a child, it includes direct or indirect exposure to such conduct. Behaviour does not have to be a criminal offence to be considered family violence under the Divorce Act.

The amended Divorce Act requires judges to consider the impact of any family violence on the best interests of the child when determining parenting arrangements. This includes the impact on the ability and willingness of any person who engaged in the family violence to care for the child, and the appropriateness of making an order requiring parents to cooperate on issues affecting the child. In every case, judges must give primary consideration to the child’s physical, emotional and psychological safety, as well as the child’s security and well-being.

The Divorce Act lists specific factors to help judges determine the impact of family violence, such as the nature and seriousness of the violence and the harm or risk of harm caused by it, any compromise to the safety of the child or other family members, and whether family violence causes the child or another family member to fear for their own safety or for the safety of another person. These factors, along with the definition of family violence, highlight coercive and controlling behaviour, a particularly dangerous form of family violence.

The amended Divorce Act also requires judges to consider any criminal or civil proceedings, orders, recognizances, undertakings, measures or other instruments relevant to the safety, security and well-being of the child as part of the best interests of the child consideration. Many types of orders related to civil and criminal proceedings may be relevant, for example, criminal convictions for assaulting a child, child protection orders relating to a child, and criminal convictions for a crime against another family member.

Funding to support victims of intimate partner violence involved in the family justice system

In Budget 2021 our Government announced $35 million of funding over five years to provide additional supports for victims of intimate partner violence in the family justice system. This funding will support projects that help victims of intimate partner violence access and navigate the family justice system, and that strengthen family justice system responses to family violence. Budget 2021 also announced $48.75 million over five years to support pilot projects for independent legal advice and legal representation for survivors of sexual assault and intimate partner violence, which can include legal advice in relation to both criminal and family law matters.