Keeping children safe and heard: supplementary submission on Divorce Act changes

Via email: JUST@parl.gc.ca

Iqra Khalid, M.P.
Chair, Standing Committee on Justice and Human Rights
284 Wellington Street
Ottawa, ON K1A 0H8

Dear Ms. Khalid:

Re: Bill C-223 - Keeping Children Safe Act (Supplementary Submission)

Following our previous submission of March 23, 2026,¹ the Canadian Bar Association Family Law and Child and Youth Law Sections (CBA Sections) would like to offer some supplementary considerations to the Committee regarding the proposed amendments to the Divorce Act in Bill C-223, the Keeping Children Safe Act. Specifically, we would like to address:

• Parental willingness to communicate and cooperate
• Child resistance or refusal of parenting time with a parent
• Reunification therapy and parenting time restrictions
• Evidence from the child
• Transitional provision

The CBA is a national association of over 40,000 members, including lawyers, law students, notaries and academics. Our mandate includes promoting the rule of law, improving access to justice and advocating for effective law reform. The Family Law Section consists of Family Law specialists from all regions of Canada who provide expertise on substantive and practical issues in Family Law. The Child and Youth Law Section comprises specialists nationwide who focus on issues related to children’s rights and best interests, addressing developments in law, policy and legal research affecting children and youth in Canada.

We have focused our comments on several key issues that warrant further consideration or that were not addressed in the previous submission and have set out our recommendations below.

1. Subclause 4(2): Parental Willingness to Communicate and Cooperate

The proposed amendment to s. 16(3)(i) of the Act is supported by the CBA Sections, i.e., that any evidence of family violence is a factor when the court is assessing the issue of a party’s willingness to communicate and cooperate. For clarity, the amendment proposed by the Bill is re-stated here:

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, taking into consideration any evidence of family violence;

2. Subclause 4(4): Child Resistance or Refusal of Parenting Time with a Parent

The proposed amendments to s.16 “Best Interests of the Child” (BIOC) of the Divorce Act noted as s.16(3.1) “factor not to be considered” and (3.2) “exception” would follow the current s.16(3) “factors to be considered” when the court is determining parenting arrangements in the child’s best interests. The proposed amendments attempt to respond to circumstances when a child resists or refuses to spend time with a parent.

There are many reasons why a child may resist or refuse parenting time with a parent. These may relate to family violence experienced within the family, the child’s relationship with the parent before their parents separated, parenting deficiencies, mental health concerns, substance misuse issues, or other family circumstances, such as the child’s relationship with other siblings, stepparents or people who live in the other parent’s home.

As stated in the CBA Sections’ original submission of March 23, 2026, the CBA Sections support the Bill’s objective of enhancing child safety and curbing the potential misuse of allegations of parental alienation. If used in an inappropriate case such as when family violence exists, such allegations may divert attention from risks of harm to the child. They also risk silencing children and may preclude a more nuanced examination of the reasons for a child’s lack of closeness in a relationship with a parent, contrary to their status as “full rights bearers” with their own rights and needs.²

In its previous submission, the CBA Sections recommended the following revision to s. 16(3.1) to ensure family violence concerns are fully scrutinized and not displaced by counter-allegations of parental alienation:

Factor not to be considered

(3.1) In determining what is in the best interests of the child, where the court has found family violence, the court shall not take into consideration any allegation that a non-perpetrator spouse has through deliberate manipulation, persuaded or encouraged a child to become estranged from or resist contact with the other spouse.

With the above-noted amendment, the inclusion of proposed s. 16(3.2) is unnecessary.

Unlike cases governed by s. 16(3.1), in cases of parent-child contact problems not involving family violence, but where alienating behaviours are alleged, the CBA Sections endorse an individualized BIOC assessment by the court, requiring consideration of various factors, including the child’s views and the impact of parental conduct on children. To better guide courts in their assessment of a child’s best interests in these situations, the CBA Sections elaborate on their previous submission by recommending consideration of the following factors:

• the child’s own account of reasons for their resistance or refusal of parenting time;
• the child’s exposure to parental conflict;
• the strength or weakness of the parent-child attachment assessed from the child’s point of view;
• parental neglect;
• negative or hostile parenting;
• parental substance misuse;
• parental mental health challenges impacting on parenting;
• sibling relationships;
• any difficulties in the relationship with a parent’s new partner or children;
• a parent’s inability to meet or accept the child’s special needs, mental health issues or sexual orientation, gender identity or gender expression; and
• the conduct of each spouse, including any protective behaviours.

In all cases, whether or not family violence is found, the CBA Sections emphasize that children’s views and experiences must be given due weight as a matter of course in the BIOC analysis.

To enhance the quality and accuracy of decision-making in parenting matters, the CBA Sections reiterate their recommendation for children’s legal representation as a systemic measure to assist courts in fact-finding and in the proper application of the BIOC factors (see Evidence from the Child, below).

3. Subclause 5(2): Reunification Therapy and Parenting Time Restrictions

The proposed amendments to the parenting orders provisions of s.16.1 of the Divorce Act would add new subsections 16.1(4.1) and (4.2) following s.16.1(4) “contents of parenting order”. The amendments attempt to address the terms a court may include in a parenting order where a child resists or refuses to spend time with a parent.

As discussed above, a child’s resistance or refusal of parenting time may arise from a range of circumstances. In accordance with the child’s age and maturity, their views and preferences must be given due weight when this issue is raised. This includes the need to ensure the child consents to any proposed therapeutic intervention, consistent with consent to treatment jurisprudence and legislation. As the proposed s. 16.1(4.1)(a) amendment suggests, courts must also be cautious about restricting a child’s parenting time with a parent (or “aligned” relative) with whom the child shares a close relationship, for the sole purpose of improving the child’s relationship with the other parent, as this may, in practice, penalize the child, rather than address the underlying issue.³ Restricting a child’s time with a favoured or protective parent and/or forcing the child to participate in therapeutic interventions designed to “improve” their relationship with the other parent may be particularly problematic in situations of family violence where the perpetrator spouse has not first taken responsibility for the abuse; shown empathy for the effects of their actions on the child; and demonstrated changes that would allow the child to feel safe.⁴

The CBA Sections are concerned about including the term “reunification therapy” in the text of Bill C-223 because the overly broad definition may limit the scope of the court’s discretion to make an order that is in the best interests of children, including in cases where the child may wish to attend a certain therapeutic intervention but a parent objects. While in all cases, the consent of a capable child should be a prerequisite to ordering any therapeutic intervention, the considerations below may assist in guiding courts in the exercise of their discretion.

Recommendation:

To reduce the likelihood of unsuitable or overly restrictive orders, the CBA Sections recommend that before exercising discretion under s.16.1(4)(d) to make “other” parenting orders, the court be required to consider the following considerations when a child is refusing or resisting contact with a parent, in addition to those proposed in s.16.1(4.1) and (4.2):

• where counselling or therapeutic interventions are proposed, whether the child consents to the intervention, consistent with provincial-territorial consent to treatment legislation;
• whether it could compromise the child’s physical, emotional or psychological safety, security, integrity or wellbeing, including the child’s sense of agency; and
• whether the proposed measure is the least intrusive measure to address the situation, having regard to the child’s views.

We further recommend that the court’s reasons state why a certain measure is being considered or ordered and why it is in the child’s best interests. In the case of a therapeutic intervention, the specific therapy should be accurately identified.

4. Subclause 5(1): Evidence from the Child

The CBA Sections reiterate their support for legal representation for children in parenting proceedings and are concerned that the proposed amendment introducing the possibility of judicial interviewing may, as currently drafted, restrict, rather than enhance, the mechanisms available to ensure children can participate meaningfully in decisions that affect them.

Recommendation:

• In court proceedings, legal representation should be prioritized to safeguard procedural fairness and ensure that children’s views, interests and rights are effectively before the adjudicator.
• Further, any provision that would introduce the possibility of judicial interviewing will require a mandate for judicial training to ensure that the consensual participation of the child is beneficial and meaningful and not in any way harmful to the child’s emotional or psychological health.

5. Clause 9: Transitional Provision

The transitional provision of clause 9 would deem the amendments in subclause 4(4) to be a change in circumstances under s. 17(5) of the Divorce Act, for the purpose of varying an existing parenting order, where a court relied on an allegation or previous decision of parental alienation in making a decision, prior to the Bill coming into force. The CBA Sections are concerned this may lead to an increase in litigation that could result in delays in the timely resolution of these and other family law matters.

Recommendation:

• Should clause 9 be enacted as written, the federal government should work with provinces and territories to ensure that courts have sufficient resources to respond to any increase in motions to change or vary parenting orders to minimize the negative impact of delays that may cause adverse effects on a child’s development or overall well-being.
• In any variation proceeding brought under clause 9, the court should be required to consider and give due weight to the child’s views and preferences.

We trust that these comments are helpful. The CBA Sections remain available to provide further information, clarification, or assistance as needed.

Yours truly,

(original letter signed by Yasmin Khaliq for Christian Whalen and Katherine N. Batycky)

End Notes

¹ CBA Submission, Bill C-223, An Act to Amend the Divorce Act (23 March 2026), online.

² Michel v. Graydon, 2020 SCC 24, at para. 77.

³ HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers – Supplemental Material, “Tab #15: Rejection of a Parent by a Child”, online.

⁴ Bancroft, L., & Silverman, J. G. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics, Thousand Oaks, CA: Sage Publications; Jaffe, P., Bala, N., Medhekar, A., Scott, K., & Oliver, C. (2025). Appropriate parenting arrangements in cases of intimate partner violence and coercive control: From research and legislative reform to changes in practice. Family Court Review, 63(3), 467–490, at 482.