What Is Family Violence?

Under the relatively new Divorce Act (D.A.), proclaimed in force in March 2021, (s. 7(3) D.A.) parties shall, if appropriate to do so,  try to resolve the matters that may be the subject of an order under the Divorce Act through a family dispute resolution process. Family Dispute Resolution Process is defined by the D.A. as “a process outside of court that is used by the parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.  Moreover, it is the duty of every lawyer to encourage their client to resolve the matters that may be the subject of an order under the D.A. to go through a family dispute resolution process, unless it is clearly inappropriate to do so (s. 7.7(2)(3)). A lawyer must certify that they have fulfilled this duty, before commencing a court application (s. 7.7(3)D.A.). I question why family courts are so backlogged, judges are so overworked and why there appears to me, to have been extraordinarily little change since March 2021 in pursuing Family Dispute Resolution Processes. Why is there a general lack of commitment by both parties and their lawyers in fulfilling their duties under the D.A. to pursue mediation or collaborative law before launching a court application? Of course, where there is family violence then there is no option but court. Family violence is defined in the D.A. as: violence or threatening or a pattern of coercive control to cause fear for one’s own safety or in the case of a child, direct or indirect exposure to such conduct. It can include physical abuse; sexual abuse; threats to kill; harassment including stalking; failure to provide necessities of life; psychological abuse; financial abuse; threat to kill or harm an animal or damage property and the killing or harming of an animal or damaging property.  In my experience, if a Child Protection Agency hasn’t validated risk of harm in respect of any of the foregoing factors, a judge is very unlikely to make this finding. It is therefore logical to assume that many cases in domestic court could have and should have been mediated or gone the route of Collaborative law.  Court should be used as a last resort and not used to punish the other party or to try and prove who is right or who is wrong or to bankrupt the other party.