It has been approximately three years since the first amendments to the divorce act came into force in Quebec, prior to this the last changes were twenty years ago. Among other things, the impact of family violence was added to the list of factors that must be considered by the courts when assessing the best interests of a child. The previous version of the Divorce Act made no mention of domestic violence or family violence in general. This change was significant, particularly considering the presence of such situations in households and the recognition of the psychological impact that violence has on children.
Family violence can take many forms like physical or psychological and can cause significant harm to both victims and witnesses. Thus, the definition added to section 2(1) of the Divorce act includes not only violent acts, but also the child’s exposure to such acts. “Family violence” implies conduct that is violent or is threatening or forms a pattern of coercive and controlling behavior or causes a family member to fear for their safety or the safety of another individual.
Next, pursuant to Section 16 of the Divorce Act, entitled “Best Interests of the Child,” paragraph j) has been incorporated under the “Factors to be considered” heading, addressing family violence and its influence on court-ordered parenting time arrangements. Additionally, within Section 16, a new heading titled “Factors relating to family violence” has been introduced to provide clarity regarding the aforementioned Section 16(3) j).
It is evident that numerous judges have engaged with the recent amendments to the Divorce Act. However, the enforceability of these changes presents a distinct challenge. In its 2022 Barendregt v. Grebliunas decision, the Supreme Court of Canada underscored the inherent difficulty in substantiating domestic violence allegations[1] and stated that “because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.[2]“
This observation finds resonance in recent family court proceedings in Quebec. While many judges have acknowledged the alleged occurrence of family violence, they have refrained from solely relying on this factor to justify a modification in parenting time, commonly referred to as custody[3].
Nevertheless, as highlighted by the Supreme Court in Barendregt v. Grebliunas, the presence of family violence appears to carry greater significance in decisions concerning the relocation of a parent with the child than in routine parenting time cases.
It remains to be seen whether judges will increasingly consider these provisions in their rulings on parenting time arrangements. However, at present, the alterations appear to not have been as substantive as they should be.
[1] Barendregt v. Grebliunas, 2022 SCC 22, par. 144.
[2] Barendregt v. Grebliunas, 2022 SCC 22, par. 147.
[3] Droit de la famille — 231499, 2023 QCCS 3310.
