Bill C-223 – Keeping Children Safe Act – In Plain English – The Basics

By Gene C. Colman, B.A., LL.B.

Bill C-223, the Keeping Children Safe Act, has passed second reading in the House of Commons.  The next step is for the “Standing Committee on Justice and Human Rights” to consider the bill. The bill introduces three main shifts: prioritizing family violence in best-interests determinations, restricting reunification therapy, and easing relocation for those alleging family violence.  This article highlights how Bill C-223 would transform the legal landscape through its changes to the existing Divorce Act.​

The bill’s preamble emphasizes revising abuse definitions to include coercive control and limiting evidence of parental conduct that undermines child-parent relationships when used to alter parenting time. It responds to concerns about discrimination against women in family courts.​

Bill C-223 Information & Resources

BEST INTERESTS FACTORS

Parental Alienation Evidence

The current Divorce Act, s. 16(3)(c), requires courts to consider each spouse’s willingness to support the child’s relationship with the other spouse. Bill C-223 repeals this subsection and adds s. 16(3.1), barring courts from considering allegations of deliberate manipulation causing a child to resist contact with a parent.​​

An exception in s. 16(3.2) allows such evidence if the alleged manipulator has committed family violence, provided it relates to best interests and is not solely to support the forbidden types of allegations as per s.  16(3.1).​​

• Implications:
  • Supporting a child’s relationship with the other parent will no longer be a best interests factor.
  • If Spouse A manipulates a child to refuse contact with Spouse B, or if Spouse A manipulates a child to entirely reject Spouse B, such evidence will no longer be admissible in court.  But if Spouse B claims to be a family violence victim, then Spouse B may raise this evidence.

Communication and Cooperation

For family violence perpetrators, current s. 16(3)(j)(i) and s. 16(6) assess ability, willingness, and steps taken to change. The bill shifts s. 16(3)(j)(i) to focus solely on ability, omitting willingness.​​

Current s. 16(3)(i) considers each person’s ability and willingness to communicate and cooperate. Current s. 16(3)(j)(i) examines the family violence perpetrator’s ability to care for the child, and s. 16(4) requires assessing steps taken to prevent recurrence.​

Amended s. 16(3)(i) qualifies cooperation with “taking into consideration any evidence of family violence.” Section 16(3)(j)(i) removes “willingness,” focusing on ability.

No Parenting Presumptions

Current s. 16(6) does not contain any presumptions re parenting time.  The subsection tells us that a parent receives only as much time as is consistent with the best interests of the child.  C-223 specifically tells us that there are no presumptions when it comes to allocating parenting time.  The bill amends s. 16(6) explicitly to reject any presumption that equal time to the spouses is desirable or even that it in a child’s best interests that the child “maintain ongoing contact with each spouse”.​​

• Implications:
  • Courts should not assume that equal parenting time is better.
  • Courts should not assume that any contact with the second parent is desirable.
  • When one considers the totality of the proposed amendments as a whole, one could reasonably assume that if there is an allegation of family violence, then the perpetrator should not have any parenting time.

PARENTING ORDERS RESTRICTIONS – REUNIFICATION THERAPY

Current s. 16.1(4)(c) empowers the court to set communication rules and other conditions. Bill C-223 preserves this and adds s. 16.1(4.1) which prohibits two things: 1. A court may not in any way restrict the favoured parent’s time with the child for the purpose of improving the child’s relationship with the other parent; and 2. A court may not require a child to attend Reunification Therapy absent consent.  RT is very widely defined.

• Implications:
  • Reunification Therapy is effectively prohibited.
  • Any measure that is designed to repair or reestablish the parent child relationship is prohibited.

MYTHS AND STEREOTYPES

Current s. 16(5) deems past conduct irrelevant unless affecting current parenting ability. The bill repeals this and adds provisions barring reliance on “myths and stereotypes” about family violence, such as delayed allegations or inconsistent statements.​​

• Implications:
  • Past conduct of family violence will always be relevant.
  • When the court considers the impact of family violence on the ability of a family violence perpetrator to care for and meet the child’s needs, any interpretation of past events that could conceivably cast doubt on the fact that the violence occurred shall be deemed to be inadmissible.

RELOCATION RULES

Current ss. 16.92 and16.93 balance advance notice requirements and mobility restrictions with best interests such that the burden of proof falls upon the relocating parent in equal time situations. Bill C-223 creates new rules with respect to the ability of parents to relocate with their children.

Amendments to s. 16.92(1) emphasize violence-related reasons, impact of denial on the relocating parent-child bond, and excuse future non-compliance with court orders due to family violence. The burden shifts: in equal parenting, the non-relocating parent must prove relocation harms best interests. Courts cannot consider current arrangements or hypothetical non-relocation.​​

The bill also adds s. 16.5(1), allowing family violence victims to relocate inter-provincially without notice. Such relocation shall not be deemed as contrary to the child’s best interests.​​

• Implications:
  • Family violence victims may relocate with children.
  • The burden of proof will always fall on the family violence perpetrator.
  • In nonfamily violence situations, the stay behind parent will always bare the burden of proof.

CHILD’S EVIDENCE

Current s. 16(1.1) is a generic provision that simply allows a court to make parenting time and parenting decision making orders.  The bill adds s. 16(1.1)-(1.2).  These sections enable direct child evidence via writing or in-camera interview with the presence of an amicus curiae.  The contents of the interview will not necessarily be disclosed to the parents.​​

• Implications:
  • “In writing” representations can be obtained from children.
  • Judicial interviews might not be disclosed to parents.

TRANSITION AND LAWYER DUTIES

Section 9 of the bill deems prior reliance on estrangement evidence a “change in circumstances” for varying orders.

With the bill (amended s. 7.7), the lawyer is obliged to assess violence risks, to skip reconciliation/resolution if there are such risks, and, implement a safety plan. The bill repeals any emphasis on reconciliation tools (current ss. 10(1) and 10(2)).

• Implications:
  • Where there has been a court decision that relied upon child estrangement, passage of the amendments will entitle the aggrieved parent to bring the case back to court to be adjudicated based upon the amended law.
  • The current pre litigation obligation of the lawyer to advise a client of reconciliation possibilities is abolished. Reconciliation as a public policy objective is abolished.
  • The current pre litigation obligation of the lawyer to advise a client of alternative dispute resolution mechanisms is effectively discouraged where there is evidence of a risk of family violence.

CONCLUSIONS

Bill C-223 would signify a significant realignment in Canadian family law philosophy.  The current Divorce Act and case law thereunder strives to maintain the parent-child relationship.  Bill C-223 seems to assume that all family violence allegations are true. To that end, a self-proclaimed victim of family violence may leave the province without a court order.  A victim may relocate within the province.  In fact, almost any parent with equal or most of the parenting time will be free to relocate with the children.  Any evidence of a parent alienating a child from the other parent will not be admissible.

While aimed at protecting victims of family violence, these changes significantly limit options for parents dealing with child estrangement and unless it is on consent, the bill prohibits therapeutic interventions designed to repair damaged parent-child relationships.