Overhaul and update all family law legislation in the Yukon to ensure that those experiencing violence and their children can escape their abusers.
What is the challenge?
Family laws are the pieces of legislation, or laws, that define what happens when a couple, whether married or common law, separates or divorces. These laws determine how assets, like the family home and belongings, and money will be shared, and they determine how custody is granted to the parents or guardians. In cases of intimate partner violence these laws have a significant impact.
The outcomes of decisions by couples and judges can impact a person’s economic security (if they lose their home and assets or lose access to income because they doing unpaid caregiving or labor in the home) they may leave an abusive relationship to enter poverty. They can also affect a person’s ability to escape violence and remove their children from that violence. If gender and intimate partner violence are not considered as part of the overall picture, abusers can continue to have access to children that they are abusing, and they can continue to apply coercive control (link) and other forms of abuse to their ex-partner through the court system itself. In addition, 2SLGBTQQIA folks often experience additional discrimination that could impact their custody outcome and children who are transitioning may be caught in unsafe situations where their right to be affirmed is not upheld in the home.
In the Yukon there are three pieces of family law legislation that impact these decisions.
- The federal Divorce Act
- The territorial Children’s Law Act
- The territorial Family Property and Support Act.
The Divorce Act is the only federal family law in Canada. It applies to married people who are seeking a divorce, wherever they live in Canada and wherever they got married, whether that was in Canada or in another country. It addresses key issues that arise when a marriage ends: arrangements for children, property division and child and spousal support. It does not apply to people who are not seeking a divorce, does not cover common law relationships, and it does not cover restraining/protection orders or orders for exclusive possession of the matrimonial home.
The Children’s Law Act describes how to address the interests of the child in custody matters in divorce or separation.
The Family Property and Support Act describes how to address the division of property and other assets, how to calculate spousal support and alimony, and other aspects of separation and divorce.
A significantly revised Divorce Act came into effect in March 2021. A number of revisions are of particular relevance for folks with children who are leaving a relationship in which their partner has abused them:
- The language of custody and access has been replaced by the terms “parenting time” and “decision making responsibility”
- Courts have always been required to use what is called the best interests of the child test when making any decisions related to children. The revised Divorce Act contains 11 criteria that courts are required to apply when using this test; one of which is the presence of family violence
- The legislation now contains a comprehensive definition of family violence: “any conduct, whether or not that conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behavior or that causes that other family member to fear for their own safety or that of another person – and in the case of a child, the direct or indirect exposure to such conduct.”
- It also includes the factors the court is to apply when assessing claims of family violence, which include such things as the nature, seriousness and frequency of the abuse, any patterns of coercive and controlling behavior, the extent to which the child is involved or affected by the abuse, whether the violence causes anyone to fear for their safety and whether the abuser is taking steps to change his behavior and improve his parenting.
- Parents wishing to relocate with their children must now follow a detailed procedure of notifying the other parent, with some exceptions for situations where the move is being made for reasons of safety
While these changes are largely positive for they are not perfect. And, because the Divorce Act applies only to married people seeking a divorce, they are not of use to folks in common-law relationships
WHAT NEEDS TO HAPPEN:
Some provinces have amended their family laws to align with the Divorce Act. Yukon has not done so. There are lawyers and judges who use the Divorce Act provisions in these situations, but there is no requirement that they do so, which creates an inequality based on family status between the federal and provincial/territorial laws.
As of today:
The Children’s Law Act does not reflect the changes made to the Divorce Act, which means that folks in Yukon who are not married to the father of their children or who are not seeking a divorce are subject to a different set of rules to guide how courts make decisions about parenting arrangements for children:
- there is no required consideration of family violence in the best interests of the child test
- there is no definition of family violence; in fact, there is no reference to it at all
- the language remains custody and access
The Family Property and Support Act distinguishes between married and unmarried couples, with no statutory regime requiring an equal division of property for people in common-law relationships.
Changes to both these pieces of legislation would be very helpful for women generally and for folks leaving abusive relationships in particular.
Yukon is significantly behind the status quo in updating its family laws. BC for example overhauled their Family Law legislation 12 years ago. We call on the Yukon government to update the Children’s’ Law Act and Family Property and Support Act to ensure that:
- Recent changes made in the Federal Divorce Act are reflected at the territorial level and the local acts are in harmony with the Divorce Act.
- Ensure that common law partners, and partners with children who have never lived together have equal rights to married couples across the legislation.
WHAT CAN YOU DO:
- Get informed
- Ask your MLA if they will support changes to the Divorce Act