A Look at How the Divorce Law Protects Children and Mothers From Abuse and Coercion

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Divorce Law
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It is tough to go through a divorce. However, what’s tougher is facing abuse and coercion in the days leading up to the divorce, during, and after. Facing abuse and coercion can be a traumatizing experience, especially for children. It can leave a long-lasting impression and take a long time to heal.

Canada’s federal government has amended the Divorce Act to protect children and mothers. It hopes that the new amendments will be in children’s best interest and parenting plans. They are intended to help judges, parents, and others make safe arrangements where there has been violence in cases before, during, or after separation. 

Here is a look at how the divorce law protects children and mothers from abuse and coercion.

Defining Family Violence and Coercion

The Divorce Act has defined family violence and coercion. As per the act, family violence is any violent, threatening behavior, a pattern of coercive and controlling behavior, or behavior that causes a family member to fear for their safety or the safety of another person.

Physical and non-physical abuse (coercion) can harm an individual when they experience it directly, see or hear instances, or know it is happening to someone they know. These incidents are considered family violence and child abuse as per law.

If you or a family member has been victimized by violence or coercion of any kind, contact your divorce lawyer right away. They will ensure that the person responsible for the violence gets rightly punished for their heinous act. It will also help protect your and your kids’ best interests.

Types of Family Violence

The amendments include the following types of violence an adult or a child may be exposed to before, during, or after divorce:

  1. Physical Abuse

This includes activities that cause physical harm to the individual. Acts such as punching, kicking, choking, biting, and forced confinement, among others, are included in physical abuse.

However, if a person performs these actions to protect themselves, they are not considered family violence.

  1. Sexual Abuse

Non-consensual sexual activities include touching, groping, forcing someone to perform sex or sexual acts, and forcing to watch pornography. This also includes encouraging a child to touch themselves sexually or touching a child sexually.

  1. Physical and Death Threats

Threatening to hurt or kill someone physically.

  1. Stalking and Harassment

Constantly calling, texting, or emailing, monitoring someone’s activities physically, or using devices, apps, and software.

  1. Psychological Abuse

Coercion in the form of constant yelling, shouting, degrading, insulting, and exhibiting controlling behavior is considered psychological abuse.

Moreover, it also includes financial abuse, property damage, the threat to harm or kill an animal, and actually committing it.

What’s New in the Divorce Act Regarding Family Violence

Before the amendments were made, there were no references regarding family violence in the act. However, the courts now have to consider family violence when deciding the parenting arrangements for a child. The courts must also consider whether the separating parents need to cooperate in matters of the child.

What Is the Change

The court must consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the child’s needs. In family violence cases, the court must also consider whether to require the parties to co-operate on matters related to the child.

The court will consider the following factors regarding family violence. It will consider whether the person is/was/might be

  • Violent towards the child
  • Use their relationship to control someone or be violent with them
  • Has instilled fear in the minds of the child

The court provides both parents with the opportunity to showcase their parenting capacity. Based on the evidence provided, the court will decide where the child’s best interest lies.

What’s New in the Divorce Act Regarding Coercion

Coercive behavior is dangerous. This can lead to the continuation or escalation of abuse and violence after divorce. Many women face non-physical abuse in their relationships. However, it is hard for them to describe its seriousness to others.

What Is the Change

The court must consider whether family violence is coercive and controlling.

Coercive control is now included in the federal Divorce Act. Judges are now required to consider coercion as a form of abuse. Acts of coercion will be considered against adults as well as children. Thus, coercion will also be a deciding factor in parental arrangements after divorce.

Some acts of coercive behavior defined in the law include:

  • Choosing the partner’s clothing
  • Controlling their money
  • Preventing them from working
  • Preventing them from seeing friends or certain people

Evidence of Family Violence and Coercion

Collecting evidence related to violence and coercion is difficult. These acts happen in private. Moreover, the victim doesn’t have the courage and strength to gather evidence. However, you will need to prove in the court of law to show that violence and coercion took place.

Some examples of evidence that can be used in court are:

  • 911 calls
  • Written statements in testimony
  • Photos
  • Video recordings
  • Hospital or medical records

Factors Taken Into Account During Trial

The judges will consider various factors when considering family violence, abuse, and coercion during a divorce proceeding. These factors include:

  • Nature of the abuse
  • Seriousness and frequency of the abuse
  • The risk to the spouse or child
  • Whether there is any improvement in the behavior of the abuser or has the abuse escalated

Parting Thoughts

Amendments to the Divorce Act were very much needed to protect children and mothers from abuse and coercion. It will help determine the best interests of the child and the person at the receiving end of the abuse.

Minister of Justice and Attorney General of Canada, David Lametti, said, “The changes that we have made to modernize the Divorce Act have been a long time coming, and I am proud that they are coming into force today. We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members.”

All we can say is that these changes are a step in the right direction and were long due. Glad they are finally here.