In March 2021, the long awaited and much anticipated changes to Canada’s Divorce Act came into effect. The changes encompassed five major areas within the act and included; a shift in language, the inclusion of a broader definition of domestic violence, an encouragement to seek out alternative dispute resolution processes, provisions around relocation and an emphasis on considerations of the best interest of the child in decision-making. As supervised access providers these changes will have an impact on the work that we do and we are optimistic that these amendments will lead to more positive outcomes for families experiencing separation and divorce across Canada.
Supervised access is generally defined as the provision of a safe, neutral and child-focused setting for parent-child visits to take place in the presence of a third-party in cases where safety is a concern. This definition will now evolve for many service providers, particularly with the shift away from terms like “custody and access” to “parenting-time and decision-making”.
Daniella Bozur, Manager of the Family Access Centre at the YWCA in Hamilton says that she anticipates the shift in language will bring about more inclusivity and positivity. “In the past we have always talked about ‘visits’ with non-custodial or visiting parents,” says Bozur. “Oftentimes the time spent is actually just that – visiting, which leaves the parent with whom the children reside to still carry the brunt of the parenting role.” She says that the new language will help to clarify decision-making responsibilities and gives both parents an active role in the parenting of the child or children.
Stacey Ashton, Supervisor of the Family Access Services program at YW Calgary agrees with Bozur. “The shift in language towards less adversarial and combative terms provides ways to talk about parenting after separation and divorce that will help change the winner-loser mentality that so often underpins high-conflict divorce.” Ashton adds that this will help support moving the focus back on the children and hopefully reduce some of the conflict within the family.
The broadening of the definition of family violence is another overdue, but positive, change to the Divorce Act. The expanded definition now includes physical and psychological abuse, financial withholdings and the killing or harming of animals. Perhaps most significant, the new definition clarifies that domestic violence does not need to be proven beyond a civil burden of proof, and formal criminal charges do not need to be laid in order for domestic violence to be a consideration when weighing parenting time matters.
“The broadened definition of domestic violence is, in my opinion, one of the most significant changes that will help keep victims safer. We know that the period following separation and divorce can be a high-risk time for domestic violence to occur and this can have profound impacts on children. Taking the burden of proof off the victim will reduce stress and anxiety, and help avoid further re-traumatization of victims in the courts. Considering the broadened definition and the balance of probabilities when determining parenting arrangements will ensure that children are not forced to spend time in unsafe family situations.” -Stacey Ashton
Ashton and Bozur both expect that the enhanced consideration of domestic violence will increase referrals to supervised visitation or supervised parenting time services. Both agree that there may be cases where it is deemed not safe for a child to have contact with a parent. However, when it is determined to be in the child’s best interest to maintain that relationship having a safe, secure and healthy environment with trained staff available to oversee that parenting time is essential for the safety of all family members.
Another vital change that has come into effect under the amended act is that the best interests of the child or children takes precedence in determining parenting orders. This means a more thorough examination of the child’s needs, their age and stage of development and whether each parent is willing and able to support the child’s development and the relationship with the other parent. Best interest of the child considerations will also be given to the strength of the child’s relationship with each parent, the history of care of the child and if age appropriate, the child’s view and preference. Ashton and Bozur believe this change is crucial as it recognizes children as agents in their own lives, empowers them to have a voice and hopefully ensures that children are not forced to spend time with a parent when they are not ready, when they do not want to have contact in the case of older children, or when risk assessment indicates that contact may not be physically or emotionally safe for the child. In addition, options such as supervised parenting time helps promote and support safe parent-child contact to mitigate potential risk. This can often put the other parent at ease and help them encourage a safe and positive relationship between their child and the other parent.
“Most of the domestic violence survivors I have worked with do not want to have all contact ceased between the other parent and the child, but instead want the child’s best interests to be considered and simply want their children to be safe.” -Daniella Bozur
Overall, these changes to the Divorce Act will help to create a unified legal framework across Canada to better align provincial and federal legislation. Although strides are being made in the right direction to better support survivors of domestic violence and support children’s best interests, further investment needs to be made to provide sustainable funding to programs such as supervised access that support victims of violence with maintaining healthy parent-child relationships through supervised parenting time services. Both Ashton and Bozur agree that further training for legal professionals in the family law sphere in the complexities of domestic violence is needed. Moreover, engaging community partners, stakeholders and survivors themselves and taking a collaborative approach to family law can improve systems navigation, reduce red tape and create more clear and accessible processes for families navigating the family justice system in Canada.
Daniella Bozur, Manager, Family Access Centre Services, YWCA Hamilton
Stacey Ashton, Supervisor, Family Access Services, YW Calgary