Divorce reforms delayed as experts brace for post-pandemic surge in divorces

OTTAWA — The federal government has delayed implementing reforms to Canada’s Divorce Act just as family law experts are bracing for a surge of women seeking divorces after being cooped up for months with abusive partners during the COVID-19 pandemic.

The reforms were to go into effect on July 1 but Justice Minister David Lametti announced late last week that implementation has been postponed until next March.

Among other things, the highly anticipated reforms will, for the first time, provide a comprehensive definition of family violence and require the courts to take into account any instances of abuse when making decisions about parenting.

Pamela Cross, legal director for Luke’s Place, a support centre in Oshawa, Ont., for women leaving abusive relationships, said the delay is another example of government policy decisions failing to take into account the pandemic’s disproportionate impact on women.

“Danger as a result of women being forced to shelter at home with their abusers has gone up,” which the government only belatedly recognized by providing increased funding for shelters, Cross said.

“But the Justice Department should also have taken into account the potential harm that’s caused by a (eight)-month delay in implementing the Divorce Act (reforms) … It is extremely disappointing — that’s probably a mild term for it — that there still is a failure to adequately consider the gendered impact of all of these decisions.”

Cross is expecting an “onslaught” of women initiating divorce actions this fall as stay-at-home orders relax and women feel safer leaving their homes to stay with family or friends or in a shelter. Those cases will now have to begin under the pre-reform Divorce Act,  which she said “doesn’t offer nearly the depth or the nuance that the new Divorce Act does when it comes to understanding family violence.”

Indeed, the pre-reform act doesn’t address family violence at all, although courts have taken into consideration incidents of domestic violence.

The new act includes an “expansive” definition of family violence, that refers to “coercive and controlling behaviour” and details the kinds of abuse that Cross said aren’t often taken seriously by the courts, such as economic and psychological abuse and threats to abuse pets.  

Lametti blamed the delay on the pandemic. It has shut down courts and preoccupied provincial governments, which he said now need more time to align their laws and regulations with the new federal law.

Cross doesn’t buy that explanation. She said provinces are under no compulsion to align their regulations with the new federal law.

In any event, she said no one expects a surge in divorce cases until the fall so there were still several months to prepare for implementation of the reforms.

Wayne Barkauskas, former chair of the Canadian Bar Association’s family law section, said the profession is bracing for a “tsunami” of cases this fall and agreed with Cross’s assessment of the impact the delay will have on women leaving abusive relationships.

But he said he’s hopeful that judges are aware of the coming reforms and that they will be reflected in parenting decisions regardless of when they actually go into effect.

“A lot of the changes in the Divorce Act, I think courts and the profession have already begun adopting some of the principles contained within the legislation,” Barkauskas said.

He said the reforms are largely aimed at changing how judges interpret the law but, until the pandemic is over, that’s largely irrelevant.

“Whether we’ve got a new Divorce Act or the old Divorce Act makes no difference because you can’t even get in front of a judge to have decisions made and we don’t know how long that’s going to be the case.”

While those who worked hard to achieve the reforms are disappointed, Barkauskas said: “We’ve waited 35 years. I think for the most part we’re looking at it from the perspective of we waited that long, we can wait another few months to make sure that the courts and the provincial governments and federal government are all ready for the changes that are going to be put in place.

“It’s better than trying to go in with nobody prepared properly.”

The reforms, which will apply only to legally married couples, are aimed at putting more emphasis on the interests of the child in parenting decisions. Barkauskas said a short delay for such “dramatic and wide-ranging” changes is justified in the interests of ensuring everyone is ready to implement them.

 This report by The Canadian Press was first published June 9, 2020.

Joan Bryden , The Canadian Press