Legal experts and a mother whose ex-partner was convicted of murdering their two daughters hope changes to Canada’s Divorce Act will better protect children.
Changes to the law took effect at the beginning of March. They place more emphasis on the needs of children during divorce and, as a result, aim to minimize legal battles between parents over custody orders, said Prof. Sara Ramshaw, a family law expert at the University of Victoria.
She said the Christmas day, 2017 deaths of six-year-old Chloe and her four-year-old sister Aubrey were part of a recent discussion about the Divorce Act with her family law students.
A British Columbia Supreme Court judge sentenced Andrew Berry to life in prison without chance of parole for 22 years in December 2019 after a jury convicted him of second-degree murder in the deaths of his two daughters. Berry is appealing his conviction and sentence.
Berry was estranged from his partner, Sarah Cotton-Elliott, at the time he killed the girls.
Ramshaw said the amendments to the Divorce Act change the way the presence and prospect of violence, including a child’s direct or indirect exposure to family violence, is considered.
“It signals to parents that it’s not about them,” Ramshaw said in an interview. “It’s not about winning and losing. It’s about children and who the children should be spending time with.
“I’m really hoping that nothing like Cotton and Berry happens again.”
She said she will be watching future family court decisions to monitor where the issue of family violence factors in court parenting rulings.
Cotton-Elliott supports the changes to the law. When she was in family court, she said she believed her children’s safety and well-being took a back seat to arranging equal parenting for herself and Berry.
“There’s now a definition of all types of family violence written into national legislation, which has never been included before,” she said in an interview. “I think the judges will be paying closer attention to these kinds of things when looking at making decisions.”
Cotton-Elliott said she believes the amended Divorce Act has the potential to protect more children from family violence.
“I think for judges to make an informed decision in these family law cases they need a thorough understanding of family violence and the issues at play,” she said. “The awareness is key. I really hope that these judges will take into account and recognize all signs of abuse.”
Berry was living in an apartment in the suburban Victoria community of Oak Bay where he was behind on his rent and the power had been cut off, his trial heard. He had quit his job and spent his savings to support a gambling habit.
In sentencing Berry, Justice Miriam Gropper said he knew he was close to losing access to his children, prompting him to write a suicide note blaming Cotton-Elliott and his parents for his death. Instead, Berry killed his daughters and stabbed himself in a failed attempt to take his own life, Gropper said.
In Canada, family law is a shared jurisdiction between the federal and provincial and territorial governments. The Divorce Act applies to married couples who are divorcing, while provincial or territorial legislation applies to unmarried or common-law couples, as well as married couples who are separated but not divorcing
The federal government says the changes to the Divorce Act are the first substantive amendments in 20 years.
In an online explanation of the changes, the federal government says the act did not previously include measures for dealing with family violence, but now the law defines it.
The definition includes any conduct that is violent, threatening, shows a pattern of coercive and controlling behaviour, causes a family member to fear for their safety directly or indirectly, and exposes a child to such conduct.
“Courts will have to take family violence into account,” the department said. “A list of factors have been added to the Divorce Act to help courts assess the seriousness of the violence and how it could affect future parenting when deciding what arrangements would be in the child’s best interests.”
Lawyer Shelley Hounsell-Gray, the Canadian Bar Association’s family law secretary, said the Divorce Act changes will hopefully bring more peace to families, including children and their parents.
“It’s not about punishment,” she said in an interview from Bedford, N.S. “It’s about working collaboratively and more holistically with families so that children and their parents will end up with better parenting plans.”
Dirk Meissner, The Canadian Press
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