C-223 – the Keeping Children Safe Act – makes some changes to how divorce courts make decisions on child custody.
The biggest change here is adding a risk of family violence as something to be considered at all steps of the process. This includes the actions of a divorce lawyer. Currently divorce lawyers are expected to act in the best interest of a spouse unless it’s inappropriate to do so, C-223 explicitly calls out evidence of family violence being one of those situations. All the usual parts about having parents work together to raise a child have exceptions for family violence allowing the parent that was the victim to not have to maintain contact with their abuser.
Lisa also wants to make it so courts can’t use accusations that one parent is trying to turn their child against the other when working out a parenting plan. The only time these accusations will be considered is when there’s evidence of the accused parent engaging in family violence.
A bigger change here is a new section marked as “Myths and Stereotypes”. There’s a section in the Divorce Act that instructs courts to ignore a person’s past conduct when determining the best interests of a child, unless that conduct affects their parenting time, decision-making, or contact with the child. So if someone was previously charged with drug possession but they never did drugs around their child then that would be ignored. Lisa wants to change this to a focus on family violence when considering the best interests of a child. She wants to make sure the courts don’t assume family violence has ended, no longer has an impact, or never happened based on specific conditions. Those conditions are:
- The parents being separated or divorce proceedings already being started
- No reports of family violence before the parents separated. This includes reports to the police or child welfare.
- No charges of family violence were laid or allegations were withdrawn.
- If charges were laid, the trial ending with a not guilty verdict.
- Allegations of family violence were not made earlier in the proceedings or were not made in previous proceedings.
- Statements or evidence around family violence in a custody or criminal hearing being inconsistent.
- A spouse continuing to live with or maintain a financial, sexual, or business relationship with their abuser.
- There are no visible signs of injury or outward signs of fear.
The general idea here is that people often stay with their abusers because they’re scared of what happens if they leave. Lisa doesn’t want allegations of family violence to be written off as fake if they come out later in proceedings because the victim might not have been in a position to make those claims earlier. On this note, Lisa also wants it to be made clear that moving to a shelter, temporary housing, or out of the province with a child with or without notice is not inherently against the best interests of the child when family violence is involved. She also wants it made clear that dividing a child’s time equally between parents or trying to make sure the child has ongoing contact with both parents isn’t necessarily in the child’s best interest.
Next Lisa wants to allow courts to get information directly from a child in writing or on camera. This will be handled by an impartial interviewer and can only be done if the court decides it’s in the best interests of the child, both parents agree, it won’t impact the child’s safety or privacy, and there’s no other way to get the information. Any information the courts get this way will only be shared with the parents if it’s decided that’s in the best interest of the child.
C-223 will also make it so courts are not allowed to limit the parenting time of a spouse who the child has a close connection with in an attempt to improve the child’s relationship with the other spouse. Obvious goal here is to make it so kids aren’t forced to spend time with an abusive parent.
The last bit here has to do with a parent moving with a child. First, it adds in parts that take family violence into consideration as a reason for wanting to move with the child. When deciding if a move should be allowed, courts will also need to look at the impact denying the move would have on the child. (Currently they only need to look at the impact of the move.) Lisa also wants to flip something that currently isn’t allowed to be considered – whether or not the parent who wants to relocate the child will relocate anyway. Under C-223 the courts will need to assume that the parent that wants to move will move even if they aren’t allowed to take the child. The point here being that if one parent wants to get away from an abuser the courts risk leaving the child in the hands of the abuser by denying the move. Instead courts will not be allowed to take any current parenting arrangement into consideration, so they won’t consider one parent losing access to the child if the child is moved. If the parent that the child spends the majority of their time with is the one that wants to move the courts will be required to allow the move unless the other parent opposes it. That parent will need to prove that the move is not in the best interests of the child and that living with them would be better.
Progress of C-223
C-223 is currently waiting for its Second Reading vote.
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