The New Divorce Act and Financial Abuse

Note: Please note that this article is in no way a substitute for legal opinion or legal advice. We highly recommend working with a family lawyer if any of these matters relate to you.

In March 2021, Canada enacted several major changes to the Divorce Act, which covers the federal aspects of divorce, including parenting arrangements, spousal support, and child support. For the first time, the Divorce Act considers the issue of “family violence,” including “financial abuse,” when it comes to making decisions in court around parenting and contact arrangements since exposure to abuse in its many forms is seen as detrimental to the best interest of the children.

How the Divorce Act Can Help Economic Abuse Survivors

Raises awareness

The amended Divorce Act specifically references “financial abuse” in its non-exhaustive definition of “family violence.” The Department of Justice provides further clarity, referencing “Financial abuse, such as not giving a spouse access to their bank account or paycheque, or preventing them from working. Such behaviour often aims to coerce and control a family member.” Elsewhere, the Department of Justice explains that examples of such behaviours include: “Forcing someone to work or not letting them work, blocking someone from accessing their bank account, withholding money from someone or controlling how they spend it, incurring debts in someone’s name without their knowledge.” By including “financial abuse” in the definition of family violence, it further legitimizes that economic abuse is a real and serious form of intimate partner violence. Inclusion in the Divorce Act will hopefully increase awareness of the issue among judges, legal professionals, and the public.

Lowers the level of legal proof for financial abuse

The Divorce Act specifies that financial abuse does not have to be a criminal offense to be considered in family court. Judges are asked to take into consideration any civil, criminal, or child protection matters that are relevant to the safety, security and well-being of the child. Economic abuse survivors will not have to prove criminality in order to have this form of abuse considered in family court.

Potentially removes economic abuse as a tactic to secure parenting time

Before the changes to the Divorce Act, economic abusers could deny the other parent the funds to provide safe housing or food security with relative impunity in family court. In certain cases, courts might even grant more parenting time to an economic abuser who could provide more financial security for the children. By recognizing financial abuse as something that can harm children, hopefully judges will be more attuned to this tactic.

Might better capture post-separation abuse

The Divorce Act changes recognize that “Family violence can also happen before, during or after a couple separates.” If a parent is withholding support payments as a means of economic control, that may now be considered financial abuse.

The New Divorce Act and Financial Abuse-ccfwe

May increase access to free legal advice through legal aid

Abusers routinely deny survivors access to funds knowing that the inability to pay for legal advice or alternative housing keeps their partners trapped. In cases of physical abuse, survivors have historically been able to access a few hours of free legal advice. Now that the definition of family violence includes financial abuse, hopefully victims of economic abuse can use these same free legal services to help free up funds from the withholding party.

There have been many positive changes by adding the concept of financial abuse into the Divorce Act that can help survivors of economic abuse. Unfortunately, there are still areas the amended Divorce Act fail to directly address.

Where the Divorce Act Continues to Leave Vulnerabilities

Divorce without minor aged children

The issue of family violence is raised only in conjunction with determining what is in the “best interests of the children.” If a couple did not share children, the Divorce Act does not add in any new protections for economic abuse survivors.

Support amounts and conditions

The Divorce Act does not specify changes to spousal or child support amounts if there is family violence. There are no specific measures outlining if child or spousal support amounts, duration, or method of payment should be adjusted in cases of financial abuse to prevent post-separation economic abuse by withholding payments.

Property division

Property division in divorce continues to be governed by provincial laws. Changes to the federal Divorce Act will not impact how assets are divided.

Evidence collection

The Divorce Act requires evidence of financial abuse and its harm to a child. It is unclear what specific type of evidence will be required in cases of financial abuse, but financial records and sworn statements from people witnessing the abuse will likely be needed as proof.

Creditor obligations

The Divorce Act has no impact over one’s credit score, credit history, or debts. While a family court can determine that one is not responsible for unfairly incurred debts as a term of the property division in divorce, it cannot release one from any obligations to creditors if the debt has not been repaid or refinanced exclusively in the other party’s name.

Definition requires broadening

The Divorce Act refers to financial abuse and not the broader term, economic abuse. Unfortunately, this means that a lot of economic abuse may continue to go unrecognized byt he courts. CCFWE is calling on the Government of Canada to include all forms of economic abuse including economic control, employment sabotage, and economic exploitation) in the National Action Plan and the amended Divorce Act.

The new Divorce Act is not perfect when it comes to tackling the issue of economic abuse, but it is a step in the right direction. It’s also a powerful signal that that Canadian courts are recognizing economic abuse, which will hopefully make it easier to change other laws and influence creditor and banking policies in the future. There is still a lot of work to be done before economic abuse can be eliminated in Canada, but the new Divorce Act proves that change is possible.

Jen Lawrence is a Certified Divorce Coach and Certified Divorce Financial Analyst

See Fact Sheet: Divorce and Family Violence (https://www.justice.gc.ca/eng/fl-df/fsdfv-fidvf.html ) and the Divorce Act for more details.

Support our petition calling on the Government of Canada to take action on all forms of economic abuse (Economic Control, Employment Sabotage, and Economic Exploitation) and include it in the amended Divorce act.

Written by: Jen Lawrence, CDC Certified Divorce Coach®, CDS, CDFA®, MBA
Designed Divorce
Cell: 647-370-9905
jen@designeddivorce.com
www.designeddivorce.com
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