Semblance of Consistency and Protection: Moving Ontario Family Law Forward Act, 2020

 In Family Law

On November 20, 2020, the Moving Ontario Family Law Forward Act, 2020 (Bill 207), received Royal Assent and will be proclaimed into law as of March 1, 2021. As a significant omnibus bill, Bill 207 will make changes to the Children’s Law Reform Act (CLRA), the Courts of Justice Act (CJA), and the Family Law Act (FLA).

One of the goals of Bill 207 is to align the CLRA with the upcoming changes to the Federal Divorce Act – changes that are being implemented as of March 2021. These CLRA amendments attempt to ensure that parents within the family law regime have a consistent experience, whether they are in the process of a divorce (subject to federal law) or not (subject to provincial law). A crucial step towards this alignment is the change of key terminology within the family law paradigm. Under Part III of the CLRA, the term “custody” will be replaced with “decision-making responsibility” and “access” will be replaced with “parenting time” – aligning the terminology with that found in the Divorce Act.

Bill 207 also amends the CLRA by creating a much more comprehensive definition of “family violence.” Once Bill 207 is proclaimed, the CLRA will have the following definition in section 18(1):

“ “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;”

The abusive conduct discussed in the above definition need not be a criminal offence and can include physical abuse; forceful confinement; sexual abuse; threats of harm; harassment and stalking; psychological and financial abuse; failing to provide necessities of life; and harm, or threats of harm, to animals.

This new legislated definition of family violence is an important step forward to tackling the systemic forces women and children face when attempting to flee abusive situations while concurrently addressing their family law matters. This can primarily be seen through the assistance provided to the victimized parent in obtaining a parenting or contact order through the legislated “best-interest of the child” analysis. This analysis will include a thorough assessment of any “family violence” inflicted upon the household by either parent as per the new expanded definition. Therefore, theoretically, it should allow abused women and children leave abusive households more easily.

However, there are continued concerns with how the newly established regime will treat parenting decisions in relation to situations involving family violence. Section 20 of the CLRA continues to prioritize shared decision-making of both parents – short of situations where a court order is in place. Furthermore, section 28(6) of the CLRA offers “exclusive authority” of a parent, during their established parenting time (visitation), to make decisions pertaining to the child. Thus, the wording of this legislation continues to leave the door open for manipulative and abusive partners to establish control through decision making for a child’s “best interests.” A power given to these partners by the statutory primacy of shared decision-making.

The amendments brought in by Bill 207 are part of the government’s direct response to industry professionals and families advocating for change within the family law system. The true impact of these changes is yet to be seen. However, the amendments are very likely to have an impact on families experiencing violence at the hands of an abusive partner, for better or worse.

Thank you to Articling Student Filip Szadurski for writing this blog.  For further information, please contact Kate Wright, a member of the Family Law, Wills and Estates and Litigation teams.  She can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.

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