Bill C-223: An Act to amend the Divorce Act

Short Title Short title 1 This Act may be cited as the Keeping Children Safe Act . R.S., c. 3 (2nd Supp.) Divorce Act 2 (1) The portion of subsection 7.7(1) of the Divorce Act before paragraph (a) is replaced by the following: Reconciliation 7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, which circumstances include evidence of a risk of family violence , it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding (2) Paragraph 7.7(2)(a) of the Act is replaced by the following: (a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, which circumstances include evidence of a risk of family violence ; (3) Section 7.7 of the Act is amended by adding the following after subsection (2): Duty to assess risk of violence (2.1) It is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding to consider whether there are reasonable grounds to believe that there is a risk of family violence towards the spouse or another family member that could adversely affect (a) the safety of the spouse on whose behalf they act or the safety of a family member of the spouse; or (b) the ability of the spouse to negotiate a fair agreement. Duty to implement a plan (2.2) If there are reasonable grounds to believe that there is such a risk of family violence, it is the duty of the legal adviser to take steps to implement an appropriate plan, ensure that the family has a safety plan and inform the spouse of the support services known to the legal adviser. 3 (1) Subsection 10(1) of the Act is repealed. (2) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following: Adjournment (2) On request by both spouses at any stage in a divorce proceeding, the court may (3) Paragraph 10(2)(b) of the Act is replaced by the following: (b) with the consent of the spouses and to assist them to achieve a reconciliation, nominate (i) a person with experience or training in marriage counselling or guidance, or (ii) in special circumstances, some other suitable person. 4 (1) Paragraph 16(3)(c) of the Act is repealed. (2) Paragraph 16(3)(i) of the Act is replaced by the following: (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, taking into consideration any evidence of family violence ; (3) Subparagraph 16(3)(j)(i) of the Act is replaced by the following: (i) the ability of any person who engaged in the family violence to care for and meet the needs of the child, and (4) Section 16 of the Act is amended by adding the following after subsection (3): Factor not to be considered (3.1) In determining what is in the best interests of the child, the court shall not take into consideration any allegation that a spouse has, or is likely to, through deliberate manipulation, persuade or encourage a child to become estranged from or resist contact with the other spouse. Exception (3.2) Despite subsection (3.1), the court may consider evidence of deliberate and repeated attempts by a spouse to interfere with a child’s relationship with the other spouse if (a) the spouse who is alleged to have engaged in the attempts to interfere has engaged in family violence; (b) the evidence is relevant to a determination of the best interests of the child; and (c) the evidence is not presented to support an allegation of conduct described in subsection (3.1). (5) Paragraph 16(4)(g) of the Act is replaced by the following: (g) evidence that any steps taken by the person engaging in the family violence to change their behaviour will improve their ability to care for and meet the needs of the child and will prevent further family violence from occurring; and (6) Subsection 16(5) of the Act is replaced by the following: Myths and stereotypes (5) In considering the impact of any family violence under paragraph (3)(j), the court shall not infer that it no longer occurs or has ceased to have an impact, or that any reports or complaints of family violence were unreliable, inaccurate or exaggerated, solely on the basis of any of the following grounds: (a) the spouses have separated or a divorce proceeding has commenced; (b) there were no reports or complaints of family violence prior to separation, including to a police authority or child welfare agency, or there have not been any such reports or complaints since separation; (c) no criminal charges were laid in respect of family violence, or allegations were withdrawn, there was no intervention on the part of a child welfare agency or, in the case of a trial for an offence involving family violence, a finding of not guilty is entered; (d) allegations of family violence are made late in the proceedings or were not made in prior proceedings; (e) in a proceeding under this Act or in a criminal proceeding, there are inconsistent statements or conflicting evidence in relation to incidents of family violence; (f) a spouse continues to live with or maintain a financial, sexual or business relationship with their spouse, or previously left them but has resumed cohabitation; or (g) there are no visible physical injuries or outward signs of fear. Decision to leave household (5.1) A decision by a spouse to leave a household in which family violence occurs to reside in a shelter or other temporary housing or to leave the province with any or all children of the marriage, with or without giving notice, is not, in and of itself, contrary to the best interests of the child. (7) Subsection 16(6) of the Act is replaced by the following: Parenting time — no presumption (6) In allocating parenting time, the court shall not presume that (a) the parenting arrangement that is most consistent with the best interests of the child is one that allocates parenting time and decision-making responsibility to both spouses or equally between the spouses; or (b) it is in the best interests of the child that they maintain ongoing contact with each spouse. 5 (1) Section 16.1 of the Act is amended by adding the following after subsection (1): Evidence from child (1.1) Before making an order under subsection (1), in order to determine a child’s views and preferences, the court may obtain information or evidence from the child directly in writing or by means of an interview with the child in camera in the presence of an amicus curiae if (a) it is in the best interests of the child to provide the information or evidence; (b) both spouses agree; and (c) the court is of the opinion that the safety and privacy of the child would not be compromised and there is no other appropriate way to obtain the information. Disclosure (1.2) Any information or evidence obtained under subsection (1.1) may be disclosed to the spouses only if the court is of the opinion that disclosure is in the best interests of the child. (2) Section 16.1 of the Act is amended by adding the following after subsection (4): Not permitted in parenting order (4.1) The court shall not, in the order, (a) restrict the parenting time of a spouse with whom the child has a close connection for the purpose of improving a child’s relationship with the other spouse; or (b) require a child to attend reunification therapy or allow a spouse to consent to the child attending reunification therapy without seeking the consent of the other spouse. Definition of reunification therapy (4.2) In subsection (4.1), reunification therapy includes any intervention, program, treatment, service or practice whose purpose is to create, repair or reestablish a relationship between a child and a parent from whom the child is estranged or whom the child has rejected. 6 (1) Paragraph 16.92(1)(a) of the Act is replaced by the following: (a) the reasons for the relocation, including whether the reasons relate to family violence ; (2) Subsection 16.92(1) of the Act is amended by adding the following after paragraph (b): (b.1) the impact on the child of prohibiting the relocation, in particular in respect of the child’s relationship with the person who intends to relocate the child; (3) Paragraph 16.92(1)(g) of the Act is replaced by the following: (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order is likely to comply with their obligations under family law legislation, an order, arbitral award, or agreement, taking into account the impact of family violence on their ability to comply with their obligations . (4) Subsection 16.92(2) of the Act is replaced by the following: Presumption (2) In deciding whether to authorize a relocation of the child, the court shall presume that the person who intends to relocate the child will relocate regardless of whether the child’s relocation is prohibited. Factor not to be considered (3) In making a decision under subsection (1), the court shall not take into consideration any arrangement regarding the exercise of parenting time by the parties in their current places of residence. 7 Subsections 16.93(1) and (2) of the Act are replaced by the following: Burden of proof — person who objects to relocation 16.93 (1) If, in accordance with an order, arbitral award, or agreement, a child of the marriage spends the majority of their time in the care of the party who intends to relocate the child, the court must authorize the relocation, unless the person opposing the relocation proves that (a) the relocation is not in the best interests of the child; and (b) it is in the best interests of the child to reside primarily with the person opposing the relocation. Burden of proof — person who intends to relocate child (2) If, in accordance with an order, arbitral award, or agreement, a child of the marriage spends the majority of their time in the care of the party who opposes the relocation of the child, the person intending to relocate the child has the burden of proving that the relocation would be in the best interests of the child. Transitional Provisions Proceedings commenced before coming into force 8 A proceeding commenced under the Divorce Act before the day on which this Act comes into force and not finally disposed of before that day is to be dealt with and disposed of in accordance with the Divorce Act as it reads as of that day. Variation order — change in circumstances 9 If, before the day on which this Act comes into force, a court, in making a decision, relied on an allegation or a previous decision that a spouse had, through deliberate manipulation, persuaded or encouraged a child to become estranged from or resist contact with the other spouse, then, for the purpose of subsection 17(5) of the Divorce Act , the provisions enacted by subsection 4(4) of this Act are deemed to be a change in circumstances.