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Divorce Act delays jeopardize women and children | Pamela Cross

Thursday, June 18, 2020 @ 2:01 PM | By Pamela Cross

Pamela Cross %>
Pamela Cross
Just last month, I wrote a series of articles for The Lawyer’s Daily that explored the pros, cons and gaps in the revisions to the Divorce Act, which were slated for implementation on July 1. The virtual ink on the page of those articles had barely dried, however, when Canada’s Attorney General and Minister of Justice David Lametti announced that implementation was being delayed until March 1, 2021, citing “extraordinary circumstances relating to the COVID-19 pandemic.”

A Department of Justice news release states: “Many courts across the country are currently hearing only urgent family law matters, and governments are focused on addressing pandemic-related urgencies and priorities. All of this has made it impossible to undertake the necessary steps for implementation.

“We understand the changes to the Divorce Act are highly anticipated by family law professionals, provincial and territorial partners and Canadians affected by separation and divorce. However, our partners throughout the family justice system need enough time to implement the legislative changes, including by adjusting their own laws and regulations.”

There is no doubt that the pandemic has created challenges that none of us could have anticipated. Governments and other public institutions have been, justifiably, distracted from attending to much other than managing the spread of the virus.

It is important, nonetheless, to consider the implications of this delay on the most vulnerable of those who turn to family law for assistance. Among those are women fleeing abusive relationships and their children.

As I noted in my May 12 article [Will new Divorce Act keep women and children fleeing abuse safe?], the changes to the Divorce Act — including the fulsome definition of family violence and the detailed best interests of the child test — offered much hope to women whose former partners had been (and, often, continued to be) abusive.

The situation of many of those women has worsened through the pandemic. Sheltering in place may have protected them from exposure to the virus but it also increased their exposure to abuse by their partner. Women have been reluctant to leave, many figuring that the devil they know (abuse) is better than the devil they don’t (COVID-19). For some, accessing legal advice and representation has been challenging, in part, because they have little privacy in which to speak to a legal professional.

Add to this the fact that courts have only been hearing urgent matters, and it is reasonable to assume that there will be an onslaught of new cases, including cases involving family violence, as courts resume standard operations. Now, any of those women seeking to resolve their matrimonial disputes through the Divorce Act will have to either proceed without the protection of the new provisions or put their case on hold until March. This could mean that important issues, including parenting arrangements, finances and property division, cannot be resolved in a timely way.

The decision to delay, while understandable in some respects, is a frustrating reminder that the present federal government’s stated commitment to using a “gender-based-analysis +” in its development of public policy and law is often little more than lip service. Just as there did not seem to be consideration of the gendered impact of sheltering at home pandemic policies and protocols, there does not seem to have been any consideration of the gendered impact of delaying implementation of the Divorce Act.

Despite the downsides, there is a possible silver lining. If sufficient political and public will can be mustered, the provinces and territories now have the time to make revisions to their family law legislation to bring it in line with the Divorce Act.

In December, Ontario’s Attorney General Doug Downey announced his intention to explore possible revisions to Ontario’s Children’s Law Reform Act to align it with the changes to Canada’s Divorce Act. In particular, he asked stakeholders to provide him with their comments about changing the language related to custody and access, amending/expanding the best interests of the child test and including a definition of family violence.

We now have an unexpected eight-month window to encourage Downey to introduce legislation to amend the Children’s Law Reform Act to ensure it is in line with the Divorce Act. Let’s not waste that opportunity.

Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law.

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