The changes to the Divorce Act (the “** Act **”) came into effect on March 1, 2021. This is the first major reform since 1985 and was put in place to adapt to the realities of the modern Canadian family.
The main amendment revolves around domestic violence and expressly recognizes this concept in the Act for the first time.
More specifically, the Law provides a non-exhaustive definition of conduct that may constitute forms of domestic violence, including coercive and dominant behavior by one of the spouses.
Further, the Act's definition of domestic violence specifies that the behavior need not constitute a criminal offense and meet the burden of proof "beyond a reasonable doubt" to be considered domestic violence. within the meaning of the Law.
In addition, it is interesting to note that the Act recognizes that direct or indirect exposure of a child to family violence is itself a form of family violence. The Law therefore recognizes the specific vulnerability of children and the harmful effects of violence against them.
In addition, the legislator modified the terminology used by opting for the concept of parental role rather than those of custody and access.
The Law also better defines the cardinal principle of the best interests of the child which must dictate the decisions of the Court in the framework of orders which concern them. The old provision addressed much broader criteria and was similar to article 33 of the Civil Code of Quebec which mentions that one must in particular take into account the age of the child, his family environment, his needs. moral, intellectual, emotional and physical.
In this regard, the Act stipulates that when the Tribunal is called upon to determine the best interests of the child, it must take into account the presence of domestic violence and its consequences, including the ability of the abusive parent to care for the child. and meet their needs.
In summary, it is clear that the changes made to the Act tend to recognize the reality of acts of violence against spouses and children which unfortunately can occur in the context of a separation.
However, it is important to note that the changes made to the Act described above do not apply to common-law spouses living in Quebec, but a major reform should soon target them in our opinion.
First of all, it should be remembered that the Supreme Court of Canada decision rendered in 2013 and known to the general public as Éric v. Lola has shed light on the legal reality of de facto spouses living in Quebec to the effect that they are not subject to the rights and obligations of a married or civil union couple, whether they have children or no.
Following the Supreme Court ruling, an advisory committee on family law made up of ten experts was set up to propose a reform of family law. In 2015, the committee tabled its report, which contained no less than 82 recommendations on various subjects of family law. There was no immediate follow-up to this report, but in 2018 the government promised to launch the reform of family law and appointed Me Alain Roy, professor at the University of Montreal, to this end. special advisor to the Minister of Justice.
The pressure is becoming important because the Quebec Court of Appeal rendered an important judgment last November in a family matter, recognizing the principle of the family joint venture in a de facto union and addressing the principles more openly. financial interdependence.
It therefore seems obvious that the legal community advocates a reform of family law, mainly with regard to couples living in a de facto union with children.
Our family law team remains at your disposal to meet all your needs and to support you throughout this process.