Alberta has made some progress in its response to family violence, but there are areas where we are falling behind, including family law.
November is Family Violence Prevention Month in Alberta, providing a good opportunity to reflect on the laws that address family violence in this province. Alberta has made some progress in its response to family violence, but there are areas where we are falling behind, including family law.
Canada’s Divorce Act
In March 2021, new amendments to the Divorce Act took effect. For the first time federally, family violence is explicitly included as a factor relevant to the best interests of the child. Now it is explicitly relevant to judicial decisions and negotiated agreements on parenting. Family violence is defined broadly in the Divorce Act to include:
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.
Section 2(1), emphasis added
The Divorce Act also lists a wide range of conduct as falling within the definition of family violence. The list includes psychological and financial abuse, threats to or the actual killing or harming of animals, and damage to property (see section 2(1)). Submissions from family law experts, and anti-violence and equality-seeking groups informed this definition (see an example brief).
Alberta’s Family Law Act
The Divorce Act applies to parties seeking a divorce in Alberta. For parties who are not married or not divorcing, Alberta’s Family Law Act provides the legal framework. Like the Divorce Act, it includes family violence as a factor relevant to the best interests of the child. However, the Family Law Act defines family violence more narrowly 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.
Section 18(3), emphasis added
Under the Family Law Act, family violence does not include reasonable force applied to a child for discipline purposes, which is a unique provision in Canadian family legislation. It also does not include:
- psychological, emotional or financial abuse
- coercive and controlling behaviour, and
- specific reference to children’s direct or indirect exposure to family violence.
These exclusions are surprising when we compare the Family Law Act to other Alberta legislation. For example:
- section 47.2(2) of the Residential Tenancies Act and section 53.981(2) of the Employment Standards Code include emotional and psychological abuse in their definitions of domestic violence
- section 1(3)(a)(ii)(C) of the Child, Youth and Family Enhancement Act includes “exposure to family violence” in its definition of when children are in need of intervention
The Family Law Act also stands out as needing reform when we consider that many other provinces have brought their family legislation into line with the Divorce Act. See Saskatchewan’s Children’s Law Act, Ontario’s Children’s Law Reform Act, New Brunswick’s Family Law Act, and Prince Edward Island’s Children’s Law Act.
Since 2013, British Columbia has included a broad definition of family violence in its Family Law Act. Research from that province shows an expansive definition of family violence can make judges more willing to accept family violence has occurred. However, this research also shows that judges’ findings of family violence do not necessarily have a positive impact on decisions about parenting arrangements. More recent research concludes that legislative change is necessary but not enough to reform the family law system to better recognize the impact of family violence on women and children – its primary victims.
A Call for Change
I have previously called for the Alberta government to amend the Family Law Act to adopt the definition of family violence in the Divorce Act amendments. More broadly, I have called for standard definitions of family violence across all Alberta legislation. In family law, it is problematic to apply different standards to resolve disputes for married or unmarried parties. These different standards are arguably discriminatory, in violation of section 15 of the Charter. Marital status has been recognized as a prohibited ground of discrimination under section 15 (Miron v Trudel, [1995] 2 SCR 418). As well, a narrow definition of family violence may adversely impact some women and children who are vulnerable to disproportionate levels of violence, such as Indigenous women. The Family Law Act’s definition of family violence may engage marital and family status, gender, age, Indigeneity, and other grounds, and perpetuate the disadvantage of survivors and their children, contrary to section 15.
If Alberta does not change the Family Law Act, one can argue the Act should be interpreted consistently with Charter values that protect equality. (For example, see Young v. Young, [1993] 4 SCR 3.) This approach allows a broader definition of family violence that includes emotional and financial abuse and coercive control to be read into the Family Law Act. The definition of family violence states the term “includes” various forms of conduct. This is an open-ended definition that allows one to interpret the Act consistently with the Divorce Act and Charter values.
Researchers have also argued that family legislation should be interpreted consistently with Canada’s international obligations that guarantee substantive equality for women and children. Justice Renu Mandhane – former Chief Commissioner of the Ontario Human Rights Commission – illustrated this approach in a recent Ontario decision, SS v RS, 2021 ONSC 2137. The Court interpreted the new Divorce Act provisions in a way that was “consistent with children’s human rights and Canada’s obligations under international law” (at para 26), including their right to protection from family violence. Although this approach focused on the Divorce Act, it applies equally to provincial legislation such as Alberta’s Family Law Act.
Some people might argue that the government of Alberta has its hands full with the COVID-19 pandemic, so this is not the time to call for amendments to provincial family legislation. However, we know that family violence has increased during the pandemic, as has family breakdown. Family Violence Prevention Month is an opportune time for the Alberta government to introduce legislation to revise the Family Law Act. It’s time to better protect survivors of family violence and their children. If the government fails to make changes, courts and other legal actors should interpret the Family Law Act’s definition of family violence broadly and consistently with the Divorce Act, constitutional and human rights law. They should also consider family violence seriously when assessing its impact on parenting decisions.
NOTE The author’s research on domestic violence is funded by the Social Sciences and Humanities Research Council. A longer version of this post appeared on ABlawg.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Jennifer Koshan
