With recent changes made to federal legislation to address family violence in Canada, it’s a good time to review the legislation in Alberta and see what those changes may mean for families in the province and where further improvements may be made with the local legislation.
Canada’s Divorce Act
Some new amendments to the federal Divorce Act were approved in 2019 and finally took effect in March 2021.
Previously, although the “best interests of the child” was the standard used in all decisions affecting children in federal courts during divorces, family violence was not explicitly included as a factor relevant to these best interests.
The changes to the legislation addressed this omission, making family violence explicitly relevant to judicial decisions and negotiated agreements on parenting.
This is the definition of family violence used in the Divorce Act:
“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.”
Tort law updates regarding family violence
Importantly, family violence doesn’t just include physical violence. It covers any behavior that involves the following:
- 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
As a result of these recent changes, the courts in Canada have become more willing to recognize and apply tort law and its remedies in response to family violence.
Alberta’s Family Law Act
Like the Divorce Act, Alberta’s Family Law Act also addresses family violence. This legislation applies more widely in Alberta as it covers situations other than divorce and is used for non-married couples. This makes it even more important to ensure that all definitions are up-to-date and comprehensive.
Within the Family Law Act, family violence is currently defined as:
“behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person.”
This is a narrower definition than in the Divorce Act because it doesn’t include the following:
- Psychological, emotional or financial abuse
- Coercive and controlling behaviour
- Specific reference to children’s direct or indirect exposure to family violence
These exclusions make the Family Law Act’s definition of family violence much narrower than in other Alberta legislation, such as the Employment Standards Code, which includes emotional and psychological abuse in their definitions. Other legislation in Alberta also references exposure to family violence by children, as the federal Divorce Act does.
Calls to amend the Family Law Act
The above omissions are the main reasons behind current calls to amend Alberta’s Family Law Act to protect both women and children — the major victims of family violence (the rate of family violence is more than two times higher for women and girls than for men and boys).
In recent years, both Saskatchewan and Ontario have updated family law legislation to bring it closer to the Divorce Act’s definition of family violence and British Columbia has used a broad definition since 2013.
Now, there are growing calls for Alberta to update its Family Law Act to expand its definition of family violence in line with the Divorce Act amendments of 2021 and other Alberta legislation: namely, to include emotional and financial abuse as well as coercive control — plus the exposure of children to family violence.
Many people feel that the current system of applying different standards to resolve disputes for married or unmarried parties is unfair and misleading for all parties. Some even believe that the different standards are discriminatory and go against international commitments to human rights that guarantee substantive equality for women and children.
They claim that the Act adversely affects women and children in non-marriage relationships as well as indigenous women.
By updating Alberta’s Family Law Act, they argue, laws would be able to be interpreted consistently with the Divorce Act and Charter values.
The problem of domestic violence was brought into stark focus during the pandemic when the number of family violence cases increased. Now seems like a ripe time to address the shortcomings of current legislation and allow judges to consider a broad definition of family violence when making parenting decisions.
At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law matters. Book a case evaluation to get started.
