On November 21, 2018, LEAF Executive Director & General Counsel Shaun O’Brien testified before the Standing Committee on Justice and Human Rights regarding Bill C-78, which would introduce significant changes to the Divorce Act. LEAF also filed a brief setting out its position with respect to the bill.

In its brief, LEAF endorsed the recommendations of  the National Association of Women and the Law (NAWL) and Luke’s Place Support and Resource Centre, joining  more than 30 organizations in urging the government to introduce more meaningful protections for women and children.

We applaud several of the proposed amendments. For example, Bill C-78 directs courts to only consider the best interests of the child when making custody or contact orders. It also requires them to give primary consideration to the child’s physical, emotional, and psychological safety and well-being, and compels courts to consider any history of family violence.  

Countless researchers have demonstrated that women who are abused are unable to protect themselves and their children under existing family law unless they can demonstrate that they are at risk for further violence. Otherwise, courts are likely to determine that maximum time with each parent, as well as full cooperation and communication between parents, are appropriate. Bill C-78 can be amended to provide protections, especially for the most vulnerable. For example, women should not have to demonstrate they are communicating or cooperating with their former spouses if there is a history of violence and this would place them at further risk of abuse. Clear exceptions should be included in the legislation. Moreover, we recommend the removal of the provision for maximum parenting time as courts often assume this is what is in the best interests of the child and may overlook other considerations, such as a history of family violence. 

“This bill takes important steps forward that will assist in the prevention of harm to women and children,” says O’Brien. “We encourage the government to make it even stronger. Women who have been abused should not be pressured to cooperate with their former spouses. Similarly, it can’t be presumed that a child should have the maximum time possible with both parents. If a parent has not been attentive to the child to date, then the time of separation – which is known to be a time of high conflict and increased danger – is not the time to encourage this.”

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.  

For media inquiries, please contact:

Shaun O’Brien, Executive Director & General Counsel                         
Women’s Legal Education and Action Fund                                        
416.595.7170 x225    
[email protected]