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https://wiki.clicklaw.bc.ca/api.php?action=feedcontributions&feedformat=atom&user=Gayle+Raphanel Clicklaw Wikibooks - User contributions [en] 2026-04-21T00:38:55Z User contributions MediaWiki 1.43.3 https://wiki.clicklaw.bc.ca/index.php?title=How_Do_I_Divide_Our_CPP_Pensions_after_We%27re_Divorced%3F&diff=36219 How Do I Divide Our CPP Pensions after We're Divorced? 2017-07-05T22:00:45Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JP Boyd on Family Law How Do I TOC|expanded=miscellaneous}}<br /> Properly speaking, Canada Pension Plans are ''equalized'', not divided, and what's being equalized are the spouses' ''pensionable credits''.<br /> <br /> CPP credits accumulate from the mandatory CPP payroll deductions taken from almost everyone's employment income. These credits build up over the years and are used by the CPP people in Ottawa to calculate the amount of the monthly CPP benefit payments each person <span class="noglossary">will</span> begin to receive when they reach the age of 65, or earlier, if they elect to take their pensions earlier, or later, if they elect to take them later.<br /> <br /> Divorced married spouses and separated unmarried spouses may apply to equalize their CPP credits. British Columbia is one of the few provinces that allow couples to ''not'' equalize their CPP credits. However, if you decide not to equalize your CPP credits you must have either a court order or a separation agreement that expressly states that the credits won't be equalized. If there's no documentation of an agreement not to equalize CPP credits, either former spouse can apply for an equalization without the consent of the other spouse. It's automatic.<br /> <br /> The amount of the CPP credits that <span class="noglossary">will</span> be equalized is the amount each spouse accumulated during their relationship after CPP has performed certain adjustments to <span class="noglossary">account</span> for things like periods out of the workforce on parental leave. The total amount of these credits is divided between each spouse. For people who have had a lower income than their former spouse, the equalization of CPP credits <span class="noglossary">will</span> increase the amount of the CPP pension they <span class="noglossary">will</span> eventually receive.<br /> <br /> To apply for the equalization of your CPP credits, apply to Service Canada. You can reach Service Canada at:<br /> <br /> <blockquote>1-800-277-9914<br><br /> [http://www.servicecanada.gc.ca]</blockquote><br /> <br /> For further information about the division of property when spouses break up, you may wish to <span class="noglossary">review</span> the chapter [[Property & Debt in Family Law Matters]].<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]], July 5, 2017}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=how}}<br /> <br /> [[Category:How Do I?|D]]<br /> [[Category:JP Boyd on Family Law]]<br /> {{Creative Commons for JP Boyd}}</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=32278 Family Violence 2016-11-15T19:46:58Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> <blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> So far, the case law has determined that a broad range of actions constitute “family violence”. The following examples are just some of the behaviors that the court has determined constitute family violence: <br /> a) In B. (M.W.) v. B. (A.R.), 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers and these actions prolonged and intensified the litigation.<br /> <br /> b) In Hokhold v. Gerbrandt, 2014 BCSC 1874, the Court determined that the father’s actions which included, sending demanding emails to the mother, failing to pay support, and threatening to close his dental practice, constituted family violence.<br /> <br /> c) In R. (C.) v. (M.A.), 2015 BCPC, the Court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.<br /> <br /> d) In R. (L.A.) v. R. (E.J.), 2014 BCSC 966, the Court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.<br /> <br /> e) F.(C.) v. V. (D), 2015 BCPC 309, the Court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.<br /> It is important to remember that just because you make an argument that something is “family violence” does not necessarily mean that a court will agree with you; a lot will depend on the specific facts of your case. The following are some examples of where the court determined that there was no family violence presence:<br /> a) In S. (L.) v. S. (G)., 2014 BCSC 187, the father wanted the Court to declare that the mother’s denial of parenting time constituted family violence; the Court refused. The Court noted that the father failed to provide any evidence of harm to the children.<br /> <br /> b) In E. (J.R.) v. 07----8 B.C. Ltd., the Court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse. <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.<br /> <br /> Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence, sometimes just called general damages,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence; this is sometimes referred to as lost earning capacity;<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages''. <br /> <br /> Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.<br /> <br /> ===The challenges of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.<br /> <br /> The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.<br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> However, in the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), where a tort claim was made in the same proceeding as a division of property claim, the court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner. <br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.<br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:<br /> <br /> * A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.<br /> * ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;<br /> * ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.<br /> * ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.<br /> * ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.<br /> * ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> * ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;<br /> * [http://canlii.ca/t/fps0x ''Shaw v. Brunelle'',] 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $65,000 for general and aggravated damages, $25,000 for lost earning capacity and an unspecified amount for cost of future care.<br /> <br /> These cases have been included only to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim -- seek legal advice from a lawyer with experience in this area.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> The Potential Impact of a finding of Family Violence on Parenting Arrangements<br /> A finding by a court that family violence has occurred could impact on a court’s decision on what parenting arrangements and what allocation of parental responsibilities are in the best interests of a child. For example, a court could determine that the perpetrator of family violence should have no parenting time, supervised parenting time, or that all of the parental responsibilities go to the survivor of family violence. However, there have been other cases where having concluded that family violence has occurred, the court still determined that sharing parenting time equally between the parents is in the child’s best interests. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific. <br /> However, according to s. 37 of the ''[[Family Law Act]]'', in the best interests analysis, a court must consider, amongst other things the following:<br /> a) The impact of any family violence on the child’s safety, security or well-being;<br /> b) Whether the family violence is directed toward the child or another family member;<br /> c) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; <br /> d) The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child; and <br /> e) Any civil or criminal proceeding relevant to the child’s safety, security or wellbeing.<br /> As such, if you are asking a court to make an order respecting guardianship, parenting arrangements or contact with a child and there has been family violence, or if you are defending such an application, it is important to present evidence that addresses these factors.<br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], November 15, 2016}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Samantha_Simpson&diff=27238 Samantha Simpson 2015-10-23T19:09:52Z

<p>Gayle Raphanel: </p> <hr /> <div><noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor<br /> | bio = '''Samantha Simpson''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Family Violence]]. Samantha's education and practical experience in the field of social work inspired her to pursue a career in family law. She is an associate with the firm of Jenkins Marzban Logan in Vancouver, and was called to the Bar in 2011. She is a 2010 graduate of the University of Victoria's law faculty. <br /> <br /> | name = Samantha Simpson<br /> | image = [[image:ssimpson.png|150px|left|link=|Samantha Simpson]]<br /> | organization = Jenkin Marzban Logan<br /> | website = [http://www.jml.ca www.jml.ca] <br /> }}<br /> <br /> <noinclude><br /> __NOGLOSSARY__<br /> [[Category:Contributor Bio|Simpson]]<br /> [[Category:JP Boyd on Family Law Contributors|Simpson]]<br /> [[Category:JP Boyd on Family Law Editors (2015)|Simpson]]<br /> </noinclude></div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=27237 Family Violence 2015-10-23T19:09:05Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> <blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.<br /> <br /> Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence, sometimes just called general damages,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence; this is sometimes referred to as lost earning capacity;<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages''. <br /> <br /> Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.<br /> <br /> ===The challenges of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.<br /> <br /> The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.<br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> However, in the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), where a tort claim was made in the same proceeding as a division of property claim, the court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner. <br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.<br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:<br /> <br /> * A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.<br /> * ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;<br /> * ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.<br /> * ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.<br /> * ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.<br /> * ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> * ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;<br /> * [http://canlii.ca/t/fps0x ''Shaw v. Brunelle'',] 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $65,000 for general and aggravated damages, $25,000 for lost earning capacity and an unspecified amount for cost of future care.<br /> <br /> These cases have been included only to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim -- seek legal advice from a lawyer with experience in this area.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], October 23, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=27236 Family Violence 2015-10-23T19:08:13Z

<p>Gayle Raphanel: /* Links */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> <blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.<br /> <br /> Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence, sometimes just called general damages,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence; this is sometimes referred to as lost earning capacity;<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages''. <br /> <br /> Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.<br /> <br /> ===The challenges of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.<br /> <br /> The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.<br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> However, in the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), where a tort claim was made in the same proceeding as a division of property claim, the court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner. <br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.<br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:<br /> <br /> * A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.<br /> * ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;<br /> * ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.<br /> * ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.<br /> * ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.<br /> * ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> * ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;<br /> * [http://canlii.ca/t/fps0x ''Shaw v. Brunelle'',] 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $65,000 for general and aggravated damages, $25,000 for lost earning capacity and an unspecified amount for cost of future care.<br /> <br /> These cases have been included only to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim -- seek legal advice from a lawyer with experience in this area.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], October 23, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=27235 Family Violence 2015-10-23T19:07:11Z

<p>Gayle Raphanel: /* Tort law */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> <blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.<br /> <br /> Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence, sometimes just called general damages,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence; this is sometimes referred to as lost earning capacity;<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages''. <br /> <br /> Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.<br /> <br /> ===The challenges of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.<br /> <br /> The first drawback of a tort claim is that you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.<br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> However, in the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), where a tort claim was made in the same proceeding as a division of property claim, the court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes by an independent expert appointed by your ex-partner. <br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.<br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award but here are some awards that the courts have made for assault and battery in a family context:<br /> <br /> * A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.<br /> * ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;<br /> * ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.<br /> * ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.<br /> * ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.<br /> * ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> * ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;<br /> * [http://canlii.ca/t/fps0x ''Shaw v. Brunelle'',] 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $65,000 for general and aggravated damages, $25,000 for lost earning capacity and an unspecified amount for cost of future care.<br /> <br /> These cases have been included only to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim -- seek legal advice from a lawyer with experience in this area.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], May 6, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=25931 Family Violence 2015-05-06T20:23:09Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a0 the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> “blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence,<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish an alleged abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature."<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone.<br /> <br /> ===The drawbacks of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence.<br /> <br /> Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law, as a result of which it can be terribly complex to present your case. <br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> On this last point, however, I should mention the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC). In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties. However, the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for obvious reasons.<br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).<br /> <br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. Sometimes the assault is of a <span class="noglossary">minor</span> nature with little resulting harm. Sometimes the abuser can successfully argue that the violence was consented to, that it was situational, or that the violence resulted from self-<span class="noglossary">defence</span>. Sometimes the court will find that the family violence was reciprocal in the relationship, in other words, that it went both ways. Sometimes the amount of damages awarded are low simply because the abuser doesn't have the financial resources to pay anything more.<br /> <br /> In any event, here are some awards that the courts have made for assault and battery in a family context.<br /> <br /> *''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages.<br /> *''[http://canlii.ca/t/1f1r7 Bellsmith v. Bellsmith]'', 1996 CanLII 448 (BCSC): Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss.<br /> *''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering.<br /> *''[http://canlii.ca/t/231pn Glendale v. Drozdzik]'', 1993 CanLII 6867 (BCCA): Date rape, $25,000 for pain and suffering plus $10,000 in wage loss.<br /> *''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500.<br /> *''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages.<br /> *''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages.<br /> *''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages.<br /> *''[http://canlii.ca/t/1f6w9 Kovacic v. Kovacic]'', 1998 CanLII 1083 (BCSC): Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages.<br /> *''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> *''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering.<br /> *''White v. White'', 2003: Multiple assaults, $10,000 in damages.<br /> <br /> These cases have been included to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim without reading each case to understand the circumstances in which the violence occurred and the award was made, and without doing a fair bit of other research on your own.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], May 6, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=25930 Family Violence 2015-05-06T20:22:05Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JPBOFL Start Chapter<br /> | Related = <br /> N/A<br /> }}<br /> {{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }}<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a0 the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> “blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence,<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish an alleged abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature."<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone.<br /> <br /> ===The drawbacks of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence.<br /> <br /> Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law, as a result of which it can be terribly complex to present your case. <br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> On this last point, however, I should mention the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC). In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties. However, the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for obvious reasons.<br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).<br /> <br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. Sometimes the assault is of a <span class="noglossary">minor</span> nature with little resulting harm. Sometimes the abuser can successfully argue that the violence was consented to, that it was situational, or that the violence resulted from self-<span class="noglossary">defence</span>. Sometimes the court will find that the family violence was reciprocal in the relationship, in other words, that it went both ways. Sometimes the amount of damages awarded are low simply because the abuser doesn't have the financial resources to pay anything more.<br /> <br /> In any event, here are some awards that the courts have made for assault and battery in a family context.<br /> <br /> *''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages.<br /> *''[http://canlii.ca/t/1f1r7 Bellsmith v. Bellsmith]'', 1996 CanLII 448 (BCSC): Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss.<br /> *''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering.<br /> *''[http://canlii.ca/t/231pn Glendale v. Drozdzik]'', 1993 CanLII 6867 (BCCA): Date rape, $25,000 for pain and suffering plus $10,000 in wage loss.<br /> *''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500.<br /> *''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages.<br /> *''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages.<br /> *''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages.<br /> *''[http://canlii.ca/t/1f6w9 Kovacic v. Kovacic]'', 1998 CanLII 1083 (BCSC): Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages.<br /> *''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> *''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering.<br /> *''White v. White'', 2003: Multiple assaults, $10,000 in damages.<br /> <br /> These cases have been included to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim without reading each case to understand the circumstances in which the violence occurred and the award was made, and without doing a fair bit of other research on your own.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], May 6, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Family_Violence&diff=25929 Family Violence 2015-05-06T20:21:15Z

<p>Gayle Raphanel: </p> <hr /> <div>{{JPBOFL Start Chapter<br /> | Related = <br /> N/A<br /> }}<br /> {{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge<br /> |ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]<br /> }}<br /> {{Clicklawbadge<br /> |resourcetype = critical resources and <br/> common questions on<br /> |link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]<br /> }<br /> <br /> ==Introduction==<br /> In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it.<br /> The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a0 the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include:<br /> <br /> “blockquote><tt>"family violence" includes</tt></blockquote><br /> <blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote><br /> <br /> <br /> Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence.<br /> <br /> Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of the violence.<br /> <br /> This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It reviews the ways that criminal law, tort law, and the ''[[Family Law Act]]'' can address issues of family violence, including through peace bonds and protection orders. It also takes a <span class="noglossary">brief</span> look at some child protection issues.<br /> <br /> Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. <br /> <br /> Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth. <br /> <br /> The legal definition of a tort is "a breach of a duty owed by someone to someone else which gives rise to a cause of action," like a duty not to hit someone, a duty to drive carefully, or a duty not to dig a hole in your lawn that someone might fall into. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.<br /> <br /> That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.<br /> <br /> Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a wrong against the family). The important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim: two separate court proceedings, one in criminal court and one in civil court. <br /> <br /> If you are punched by someone, for example, that person's conduct may result in both:<br /> <br /> #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and<br /> #a civil court proceeding, for a breach of the civil duty not to harm someone else, which may give you a cause of action in tort and allow you to sue the person who hit you for damages.<br /> <br /> The criminal law punishes someone who is found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or by imposing terms or conditions on the guilty person's conduct, like a restraining order or a peace bond.<br /> <br /> The goal of civil law, however, isn't to punish someone who has breached a duty owed to someone else; the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of damages, a financial award intended to <span class="noglossary">account</span> for things like pain and suffering, lost wages, rehabilitation and medical <span class="noglossary">costs</span>, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.<br /> <br /> ==The ''Criminal Code''==<br /> <br /> The ''Criminal Code'' is the main federal legislation on criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:<br /> <br /> *common assault,<br /> *assault causing bodily harm,<br /> *aggravated assault,<br /> *sexual assault,<br /> *attempted murder,<br /> *stalking (criminal harassment),<br /> *making threats (uttering threats),<br /> *keeping someone against their will (unlawful confinement), and<br /> *kidnapping.<br /> <br /> In <span class="noglossary">order</span> for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.<br /> <br /> After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge.<br /> <br /> ===Information for abused persons===<br /> <br /> If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into <span class="noglossary">custody</span>. To find out more about what the police can do, you may wish to read [http://clicklaw.bc.ca/resource/2412 Getting Help from the Police or RCMP] and<br /> [http://clicklaw.bc.ca/resource/2237 Surviving Relationship Violence and Abuse]. If your partner is taken into <span class="noglossary">custody</span>, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from <span class="noglossary">custody</span> until the trial date following the <span class="noglossary">brief</span> hearing, and the <span class="noglossary">release</span> will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.<br /> <br /> It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take <span class="noglossary">action</span> against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.<br /> <br /> You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into <span class="noglossary">custody</span>, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:<br /> <br /> *not go to your home, school or workplace,<br /> *not go to your children's school or daycare,<br /> *not come within a certain distance of your home,<br /> *not <span class="noglossary">contact</span> you or the children, directly or indirectly, and<br /> *fulfill any other condition that may be necessary for the safety of you and your children.<br /> <br /> Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.<br /> <br /> ====Breaching the recognizance====<br /> <br /> If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.<br /> <br /> ====Call VictimLink====<br /> <br /> Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.<br /> <br /> Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week. <br /> <br /> You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.<br /> <br /> ====Getting back together====<br /> <br /> You must speak to crown counsel if you want to get back together with your partner, or if you want to <span class="noglossary">contact</span> him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you <span class="noglossary">contact</span> your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.<br /> <br /> ===Information for accused persons===<br /> <br /> It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.<br /> <br /> If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you. <br /> <br /> Typically, bail conditions include:<br /> <br /> *not to have <span class="noglossary">contact</span> with your spouse, either directly or indirectly,<br /> *not to go to your spouse's home, school or workplace, and<br /> *to keep the peace and be of good behaviour.<br /> <br /> Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.<br /> <br /> The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.<br /> <br /> ====Lawyers and your bail hearing====<br /> <br /> You have a right to <span class="noglossary">contact</span> a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.<br /> <br /> Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.<br /> <br /> The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.<br /> <br /> Under certain circumstances, you may not be released from <span class="noglossary">custody</span>, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.<br /> <br /> ====Getting back together====<br /> <br /> Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:<br /> <br /> *'''Dropping the charges:''' Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.<br /> *'''Communication with your spouse:''' Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the <span class="noglossary">contact</span>, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.<br /> *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.<br /> <br /> ===The consequences of criminal charges===<br /> <br /> Among other things, criminal charges relating to family violence can lead to:<br /> <br /> *a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered,<br /> *a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),<br /> *a ''suspended sentence'', with conditions, a period of probation and a criminal conviction,<br /> *a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or<br /> *a conviction punished by a fine, jail time, or both a fine and time in jail.<br /> <br /> The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.<br /> <br /> ==Tort law==<br /> <br /> Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims.<br /> <br /> Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:<br /> <br /> *pain and suffering resulting from the violence,<br /> *loss of enjoyment of life as a result of the impact of the violence,<br /> *past wages lost because of the violence,<br /> *future wages lost because of some inability, illness or other impairment resulting from the violence,<br /> *rehabilitation and job retraining <span class="noglossary">costs</span>, and<br /> *past and future medical care expenses related to the injuries suffered from the violence.<br /> <br /> Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish an alleged abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature."<br /> <br /> The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone.<br /> <br /> ===The drawbacks of tort claims===<br /> <br /> This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence.<br /> <br /> Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law, as a result of which it can be terribly complex to present your case. <br /> <br /> Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practise family law do not work on a contingency basis where they get paid out of the client's award; they charge by the hour.<br /> <br /> Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''.<br /> <br /> On this last point, however, I should mention the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC). In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties. However, the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated.<br /> <br /> Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have to disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for obvious reasons.<br /> <br /> ===Limitation periods===<br /> <br /> A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.<br /> <br /> Under (s. 3 (1)) of the provincial ''[http://canlii.ca/t/521sn Limitation Act]'' there is no limitation period to claims based on sexual misconduct.<br /> <br /> Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship (s. 3 (i) (k)).<br /> <br /> <br /> ===Awards===<br /> <br /> The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. Sometimes the assault is of a <span class="noglossary">minor</span> nature with little resulting harm. Sometimes the abuser can successfully argue that the violence was consented to, that it was situational, or that the violence resulted from self-<span class="noglossary">defence</span>. Sometimes the court will find that the family violence was reciprocal in the relationship, in other words, that it went both ways. Sometimes the amount of damages awarded are low simply because the abuser doesn't have the financial resources to pay anything more.<br /> <br /> In any event, here are some awards that the courts have made for assault and battery in a family context.<br /> <br /> *''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages.<br /> *''[http://canlii.ca/t/1f1r7 Bellsmith v. Bellsmith]'', 1996 CanLII 448 (BCSC): Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss.<br /> *''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering.<br /> *''[http://canlii.ca/t/231pn Glendale v. Drozdzik]'', 1993 CanLII 6867 (BCCA): Date rape, $25,000 for pain and suffering plus $10,000 in wage loss.<br /> *''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500.<br /> *''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages.<br /> *''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages.<br /> *''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages.<br /> *''[http://canlii.ca/t/1f6w9 Kovacic v. Kovacic]'', 1998 CanLII 1083 (BCSC): Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages.<br /> *''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.<br /> *''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering.<br /> *''White v. White'', 2003: Multiple assaults, $10,000 in damages.<br /> <br /> These cases have been included to give readers of this website a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim without reading each case to understand the circumstances in which the violence occurred and the award was made, and without doing a fair bit of other research on your own.<br /> <br /> ==The ''Family Law Act''==<br /> <br /> The provincial ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal recognizance does, discussed above.<br /> <br /> ===Protection orders===<br /> <br /> Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. <br /> <br /> The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: <br /> <br /> <blockquote><tt>"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member</tt></blockquote><br /> <br /> <blockquote><tt>"family member", with respect to a person, means</tt></blockquote><br /> <blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote><br /> <blockquote><tt>and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)</tt></blockquote><br /> <br /> If you read the definition of ''family member'' carefully, you'll see that people who are just dating or are in another casual relationship aren't "family members" as the act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders.<br /> <br /> ====Making protection orders====<br /> <br /> When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):<br /> <br /> <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote><br /> <blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote><br /> <blockquote><tt>(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;</tt></blockquote><br /> <blockquote><tt>(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;</tt></blockquote><br /> <blockquote><tt>(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;</tt></blockquote><br /> <blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote><br /> <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote><br /> <br /> Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:<br /> <br /> #whether the child might be exposed to family violence if a protection order isn't made; and,<br /> #whether a protection order should also be made for the protection of the child.<br /> <br /> Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184.<br /> ====Protection orders====<br /> <br /> The available protection orders are listed at s. 183(3) and include orders:<br /> <br /> *restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,<br /> *limiting how the person communicates with the at-risk family member,<br /> *directing the police to remove the person from the family home or accompany him or her to remove personal property, and<br /> *requiring the person to report to the court or to another person.<br /> <br /> Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.<br /> <br /> If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.<br /> <br /> To find out more about protection orders, you may wish to read the booklet [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders].<br /> <br /> ====Changing protection orders====<br /> <br /> When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:<br /> <br /> #extend or shorten the period of time that the order is in effect,<br /> #vary the terms of the order, or<br /> #end the order.<br /> <br /> When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.<br /> <br /> ====Enforcing protection orders====<br /> <br /> Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'', which makes it an offence to breach of a court order. However, s. 188(2) says this;<br /> <br /> <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote><br /> <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote><br /> <br /> ===Conduct orders===<br /> <br /> The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''[[Family Law Act]]'' that may be used to address concerns relating to family violence. Conduct orders may only be made for one of four purposes set out at s. 222:<br /> <br /> <blockquote><tt>At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote><br /> <br /> Conduct orders include orders:<br /> <br /> *requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,<br /> *restricting communication between the parties,<br /> *requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,<br /> *restricting a person from terminating the utilities serving the family home,<br /> *requiring a person to supervise the removal of personal property from the family home,<br /> *requiring a person to post security to guarantee his or her good behaviour, and<br /> *requiring a person to report to the court to another person, like a counsellor or therapist.<br /> <br /> Conduct orders can be enforced in a number of ways, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.<br /> <br /> ===Other orders===<br /> <br /> Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence.<br /> <br /> *'''Exclusive occupancy:''' Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.<br /> *'''Supervised parenting time and contact:''' Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.<br /> *'''Conditions of parenting time and contact:''' Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.<br /> <br /> ==Child protection issues==<br /> <br /> The provincial [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development] is authorized to protect children from neglect and harm under the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Section 2 of the act sets out the guiding principles of the legislation:<br /> <br /> <blockquote><tt>This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(d) the child's views should be taken into account when decisions relating to a child are made;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(e) kinship ties and a child's attachment to the extended family should be preserved if possible;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(f) the cultural identity of aboriginal children should be preserved;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(g) decisions relating to children should be made and implemented in a timely manner.</tt></blockquote></blockquote><br /> <br /> Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the ''Child, Family and Community Service Act'' are the safety and well-being of the children.<br /> <br /> ===Reporting children to the ministry===<br /> <br /> Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development].<br /> <br /> Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.<br /> <br /> ===The consequences of a report===<br /> <br /> If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:<br /> <br /> *providing support services to the family in the home, including referrals to outside social agencies,<br /> *supervising the child's care in the home, including random unannounced visits by the worker, or<br /> *removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.<br /> <br /> Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.<br /> <br /> ====Information for reported parents====<br /> <br /> Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.<br /> <br /> Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.<br /> <br /> You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.<br /> <br /> Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.<br /> <br /> The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.<br /> <br /> ====Information for parents making a report====<br /> <br /> Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.<br /> <br /> Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.<br /> <br /> Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.<br /> <br /> Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.<br /> <br /> ===What happens if a problem is found===<br /> <br /> If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings. <br /> <br /> If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules].<br /> <br /> ====When your child is not removed====<br /> <br /> Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:<br /> <br /> *the on-going supervision of the child,<br /> *the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,<br /> *prohibiting a person from contacting and interfering with the child,<br /> *prohibiting a person from living with the child or entering the child's home,<br /> *a term requiring the police to enforce the order, and<br /> *the removal of the child if the parent fails to comply with the terms of a supervision order.<br /> <br /> The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.<br /> <br /> You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.<br /> <br /> ====When your child is removed====<br /> <br /> If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.<br /> <br /> At the presentation hearing, the court may make interim orders for the following:<br /> <br /> *that the ministry have custody of your child,<br /> *that the child be returned to you under the supervision of the ministry,<br /> *that the child be returned to you, or<br /> *that the child be placed in the care of someone other than yourself.<br /> <br /> It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.<br /> <br /> Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.<br /> <br /> A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.<br /> <br /> A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.<br /> <br /> Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.<br /> <br /> At the protection hearing, the court may make orders for the following relief:<br /> <br /> *that the child be returned to you under the supervision of the ministry for a period of up to six months,<br /> *that the child be placed in someone else's custody for a specific period of time,<br /> *that the child be placed in the custody of the ministry for a specific period of time, or<br /> *that the child continue to be in the custody of the ministry.<br /> <br /> Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.<br /> <br /> At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.<br /> <br /> To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet [http://clicklaw.bc.ca/resource/1060 Parents' Rights, Kids' Rights.].<br /> <br /> <br /> ==Resources and links==<br /> ===Legislation===<br /> <br /> * ''[[Family Law Act]]''<br /> * ''[http://canlii.ca/t/7vf2 Criminal Code]''<br /> * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]<br /> * ''[http://canlii.ca/t/8487 Negligence Act]''<br /> * ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''<br /> * ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''<br /> * ''[http://canlii.ca/t/845q Limitation Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/resource/1317 Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges]<br /> *[http://www.clicklaw.bc.ca/resource/1319 Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders]<br /> *[http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources for abuse and family violence]:<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources for child protection]<br /> *[http://www.clicklaw.bc.ca/global/search?k=child%20protection Legal Services Society publications on abuse and family violence]<br /> *[http://www.familylaw.lss.bc.ca/legal_issues/childProtection.php Family Law in British Columbia website information on child protection/removal]<br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], May 6, 2015}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Further_Topics_and_Overlapping_Legal_Issues_in_Family_Law&diff=21946 Further Topics and Overlapping Legal Issues in Family Law 2014-07-08T18:59:02Z

<p>Gayle Raphanel: /* Links */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> <br /> Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. <br /> <br /> This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.<br /> <br /> The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> <blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote><br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> <blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote><br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> <blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote><br /> <blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote><br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> <blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote><br /> <blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote><br /> <blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote><br /> <br /> ===Child support===<br /> <br /> Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> <blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote><br /> <blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote><br /> <br /> The mother's application was dismissed.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Wills and estates issues==<br /> <br /> ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.<br /> <br /> Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:<br /> <br /> <blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote><br /> <br /> <blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote><br /> <br /> British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.<br /> <br /> A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children.<br /> <br /> If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.<br /> <br /> If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.<br /> <br /> ==Parental support==<br /> <br /> The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.<br /> <br /> ==The conflict of laws==<br /> <br /> The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:<br /> <br /> *spouses have property in different provinces or countries,<br /> *the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or<br /> *the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.<br /> <br /> The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.<br /> <br /> ===Children===<br /> <br /> Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:<br /> <br /> #either spouse normally lives in this province, or<br /> #both spouses agree that our courts should deal with the matter.<br /> <br /> Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.<br /> <br /> Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:<br /> <br /> #the child normally lives in British Columbia, or<br /> #the child is physically present in the province but will be at serious risk unless the original order is changed.<br /> <br /> ===Child support and spousal support===<br /> <br /> Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."<br /> <br /> An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.<br /> <br /> The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.<br /> <br /> ===Property and debt===<br /> <br /> The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.<br /> <br /> Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:<br /> <br /> *the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',<br /> *the parties agree that the court should deal with the claim,<br /> *either party was "habitually resident" in the province when the court proceeding started, or<br /> *there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.<br /> <br /> If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:<br /> <br /> *dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province, <br /> *making orders about respecting the care, management, or use of the property outside the province, and<br /> *making orders about ownership of the property outside the province.<br /> <br /> More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".<br /> <br /> ==Immigration issues==<br /> <br /> Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.<br /> <br /> ===Permanent resident spouses===<br /> <br /> Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:<br /> <br /> <blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote><br /> <br /> In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:<br /> <br /> <blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote><br /> <br /> However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.<br /> <br /> Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.<br /> <br /> ===Non-resident spouses===<br /> <br /> If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.<br /> <br /> ===Sponsoring spouses===<br /> If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.<br /> <br /> If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''<br /> * ''[http://canlii.ca/t/84g5 Adoption Act]''<br /> * ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> *[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown] <br /> <br /> <br /> {{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Further_Topics_and_Overlapping_Legal_Issues_in_Family_Law&diff=21945 Further Topics and Overlapping Legal Issues in Family Law 2014-07-08T18:54:08Z

<p>Gayle Raphanel: /* Legislation */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> <br /> Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. <br /> <br /> This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.<br /> <br /> The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> <blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote><br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> <blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote><br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> <blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote><br /> <blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote><br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> <blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote><br /> <blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote><br /> <blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote><br /> <br /> ===Child support===<br /> <br /> Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> <blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote><br /> <blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote><br /> <br /> The mother's application was dismissed.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Wills and estates issues==<br /> <br /> ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.<br /> <br /> Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:<br /> <br /> <blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote><br /> <br /> <blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote><br /> <br /> British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.<br /> <br /> A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children.<br /> <br /> If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.<br /> <br /> If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.<br /> <br /> ==Parental support==<br /> <br /> The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.<br /> <br /> ==The conflict of laws==<br /> <br /> The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:<br /> <br /> *spouses have property in different provinces or countries,<br /> *the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or<br /> *the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.<br /> <br /> The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.<br /> <br /> ===Children===<br /> <br /> Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:<br /> <br /> #either spouse normally lives in this province, or<br /> #both spouses agree that our courts should deal with the matter.<br /> <br /> Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.<br /> <br /> Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:<br /> <br /> #the child normally lives in British Columbia, or<br /> #the child is physically present in the province but will be at serious risk unless the original order is changed.<br /> <br /> ===Child support and spousal support===<br /> <br /> Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."<br /> <br /> An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.<br /> <br /> The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.<br /> <br /> ===Property and debt===<br /> <br /> The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.<br /> <br /> Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:<br /> <br /> *the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',<br /> *the parties agree that the court should deal with the claim,<br /> *either party was "habitually resident" in the province when the court proceeding started, or<br /> *there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.<br /> <br /> If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:<br /> <br /> *dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province, <br /> *making orders about respecting the care, management, or use of the property outside the province, and<br /> *making orders about ownership of the property outside the province.<br /> <br /> More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".<br /> <br /> ==Immigration issues==<br /> <br /> Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.<br /> <br /> ===Permanent resident spouses===<br /> <br /> Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:<br /> <br /> <blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote><br /> <br /> In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:<br /> <br /> <blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote><br /> <br /> However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.<br /> <br /> Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.<br /> <br /> ===Non-resident spouses===<br /> <br /> If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.<br /> <br /> ===Sponsoring spouses===<br /> If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.<br /> <br /> If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''<br /> * ''[http://canlii.ca/t/84g5 Adoption Act]''<br /> * ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> *[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown] <br /> <br /> <br /> {{REVIEWED | reviewer = [[JP Boyd]], May 20, 2013}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Further_Topics_and_Overlapping_Legal_Issues_in_Family_Law&diff=21944 Further Topics and Overlapping Legal Issues in Family Law 2014-07-08T18:52:26Z

<p>Gayle Raphanel: /* Wills and estates issues */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> <br /> Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. <br /> <br /> This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.<br /> <br /> The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> <blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote><br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> <blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote><br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> <blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote><br /> <blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote><br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> <blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote><br /> <blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote><br /> <blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote><br /> <br /> ===Child support===<br /> <br /> Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> <blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote><br /> <blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote><br /> <br /> The mother's application was dismissed.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Wills and estates issues==<br /> <br /> ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.<br /> <br /> Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:<br /> <br /> <blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote><br /> <br /> <blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote><br /> <br /> British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.<br /> <br /> A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children.<br /> <br /> If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.<br /> <br /> If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.<br /> <br /> ==Parental support==<br /> <br /> The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.<br /> <br /> ==The conflict of laws==<br /> <br /> The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:<br /> <br /> *spouses have property in different provinces or countries,<br /> *the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or<br /> *the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.<br /> <br /> The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.<br /> <br /> ===Children===<br /> <br /> Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:<br /> <br /> #either spouse normally lives in this province, or<br /> #both spouses agree that our courts should deal with the matter.<br /> <br /> Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.<br /> <br /> Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:<br /> <br /> #the child normally lives in British Columbia, or<br /> #the child is physically present in the province but will be at serious risk unless the original order is changed.<br /> <br /> ===Child support and spousal support===<br /> <br /> Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."<br /> <br /> An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.<br /> <br /> The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.<br /> <br /> ===Property and debt===<br /> <br /> The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.<br /> <br /> Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:<br /> <br /> *the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',<br /> *the parties agree that the court should deal with the claim,<br /> *either party was "habitually resident" in the province when the court proceeding started, or<br /> *there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.<br /> <br /> If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:<br /> <br /> *dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province, <br /> *making orders about respecting the care, management, or use of the property outside the province, and<br /> *making orders about ownership of the property outside the province.<br /> <br /> More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".<br /> <br /> ==Immigration issues==<br /> <br /> Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.<br /> <br /> ===Permanent resident spouses===<br /> <br /> Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:<br /> <br /> <blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote><br /> <br /> In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:<br /> <br /> <blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote><br /> <br /> However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.<br /> <br /> Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.<br /> <br /> ===Non-resident spouses===<br /> <br /> If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.<br /> <br /> ===Sponsoring spouses===<br /> If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.<br /> <br /> If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/840g Estate Administration Act]''<br /> * ''[http://canlii.ca/t/84g0 Wills Variation Act]''<br /> * ''[http://canlii.ca/t/84fx Wills Act]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''<br /> * ''[http://canlii.ca/t/84g5 Adoption Act]''<br /> * ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> *[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown] <br /> <br /> <br /> {{REVIEWED | reviewer = [[JP Boyd]], May 20, 2013}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Further_Topics_and_Overlapping_Legal_Issues_in_Family_Law&diff=21940 Further Topics and Overlapping Legal Issues in Family Law 2014-07-08T18:47:57Z

<p>Gayle Raphanel: /* Wills and estates issues */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> <br /> Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. <br /> <br /> This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.<br /> <br /> The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> <blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote><br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> <blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote><br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> <blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote><br /> <blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote><br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> <blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote><br /> <blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote><br /> <blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote><br /> <br /> ===Child support===<br /> <br /> Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> <blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote><br /> <blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote><br /> <br /> The mother's application was dismissed.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Wills and estates issues==<br /> <br /> ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.<br /> <br /> Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:<br /> <br /> <blockquote><tt>'''3''' A will is valid only if it is in writing.</tt></blockquote><br /> <blockquote><tt>'''4''' Subject to section 5, a will is not valid unless</tt></blockquote><br /> <blockquote><blockquote><tt>(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.</tt></blockquote></blockquote><br /> <br /> The provincial ''[http://canlii.ca/t/84g0 Wills Variation Act]'' says that people are presumed to have a moral duty to provide for members of their immediate family. Under this act, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.<br /> <br /> A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.<br /> <br /> ==Parental support==<br /> <br /> The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.<br /> <br /> ==The conflict of laws==<br /> <br /> The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:<br /> <br /> *spouses have property in different provinces or countries,<br /> *the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or<br /> *the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.<br /> <br /> The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.<br /> <br /> ===Children===<br /> <br /> Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:<br /> <br /> #either spouse normally lives in this province, or<br /> #both spouses agree that our courts should deal with the matter.<br /> <br /> Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.<br /> <br /> Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:<br /> <br /> #the child normally lives in British Columbia, or<br /> #the child is physically present in the province but will be at serious risk unless the original order is changed.<br /> <br /> ===Child support and spousal support===<br /> <br /> Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."<br /> <br /> An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.<br /> <br /> The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.<br /> <br /> ===Property and debt===<br /> <br /> The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.<br /> <br /> Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:<br /> <br /> *the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',<br /> *the parties agree that the court should deal with the claim,<br /> *either party was "habitually resident" in the province when the court proceeding started, or<br /> *there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.<br /> <br /> If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:<br /> <br /> *dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province, <br /> *making orders about respecting the care, management, or use of the property outside the province, and<br /> *making orders about ownership of the property outside the province.<br /> <br /> More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".<br /> <br /> ==Immigration issues==<br /> <br /> Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.<br /> <br /> ===Permanent resident spouses===<br /> <br /> Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:<br /> <br /> <blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote><br /> <br /> In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:<br /> <br /> <blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote><br /> <br /> However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.<br /> <br /> Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.<br /> <br /> ===Non-resident spouses===<br /> <br /> If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.<br /> <br /> ===Sponsoring spouses===<br /> If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.<br /> <br /> If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/840g Estate Administration Act]''<br /> * ''[http://canlii.ca/t/84g0 Wills Variation Act]''<br /> * ''[http://canlii.ca/t/84fx Wills Act]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''<br /> * ''[http://canlii.ca/t/84g5 Adoption Act]''<br /> * ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> *[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown] <br /> <br /> <br /> {{REVIEWED | reviewer = [[JP Boyd]], May 20, 2013}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Further_Topics_and_Overlapping_Legal_Issues_in_Family_Law&diff=21937 Further Topics and Overlapping Legal Issues in Family Law 2014-07-08T18:42:59Z

<p>Gayle Raphanel: /* Married spouses */</p> <hr /> <div>{{JP Boyd on Family Law TOC|expanded = other}}<br /> <br /> Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. <br /> <br /> This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.<br /> <br /> ==Same-sex relationships==<br /> <br /> Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislation has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed <span class="noglossary">suit</span>.<br /> <br /> The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:<br /> <br /> <blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote><br /> <br /> She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples. <br /> <br /> Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.<br /> <br /> How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Marriage & Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.<br /> <br /> It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.<br /> <br /> ===Children===<br /> <br /> Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:<br /> <br /> ''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):<br /> <br /> <blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote><br /> <br /> ''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:<br /> <br /> <blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote><br /> <blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote><br /> <br /> ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):<br /> <br /> <blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote><br /> <blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote><br /> <blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote><br /> <br /> ===Child support===<br /> <br /> Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the [[Child Support Guidelines]] unless the parent paying support, the ''payor'', fits into one of a very narrow range of exceptions:<br /> <br /> *payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),<br /> *the payor is responsible for the care and control of the child for more than 40% of the child's time,<br /> *the child is 19 or older,<br /> *the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or<br /> *other persons are also under a legal obligation to care for the child.<br /> <br /> The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that the other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.<br /> <br /> ==Issues affecting transgendered and transsexual people==<br /> <br /> To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. <br /> <br /> If you have a family law problem and your orientation, gender or identity becomes an issue, <span class="noglossary">contact</span> a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.<br /> <br /> ===Marriage===<br /> <br /> As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', gender is irrelevant in determining the ability of a couple to marry.<br /> <br /> ===Children===<br /> <br /> Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. <br /> <br /> It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.<br /> <br /> On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:<br /> <br /> <blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote><br /> <blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote><br /> <br /> The mother's application was dismissed.<br /> <br /> ===Child support===<br /> <br /> Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.<br /> <br /> ===Spousal support===<br /> <br /> The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.<br /> <br /> ===Divorce===<br /> <br /> The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.<br /> <br /> ==Wills and estates issues==<br /> <br /> ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.<br /> <br /> Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/84fx Wills Act]''. Sections 3 and 4 set out the basic requirements for a valid will:<br /> <br /> <blockquote><tt>'''3''' A will is valid only if it is in writing.</tt></blockquote><br /> <blockquote><tt>'''4''' Subject to section 5, a will is not valid unless</tt></blockquote><br /> <blockquote><blockquote><tt>(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.</tt></blockquote></blockquote><br /> <br /> The provincial ''[http://canlii.ca/t/84g0 Wills Variation Act]'' says that people are presumed to have a moral duty to provide for members of their immediate family. Under this act, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.<br /> <br /> A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.<br /> <br /> ===Unmarried couples===<br /> <br /> A person can make a will making anyone a beneficiary of his or her estate. The nature of the person's relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.<br /> <br /> The ''[http://canlii.ca/t/840g Estate Administration Act]'', the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a ''spouse''. Spouse is defined as including "a common law spouse"; common law spouse is defined as: <br /> <br /> <blockquote><tt>(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or</tt></blockquote><br /> <blockquote><tt>(b) is living with another person in a marriage-like relationship, and has lived in that relationship for a period of at least 2 years;</tt></blockquote><br /> <br /> The ''[http://canlii.ca/t/84g0 Wills Variation Act]'' defines ''spouse'' as a person who:<br /> <br /> <blockquote><tt>(a) is married to another person, or</tt></blockquote><br /> <blockquote><tt>(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.</tt></blockquote><br /> <br /> What's interesting about the ''Estate Administration Act'' and the ''Wills Variation Act'' is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.<br /> <br /> ===Planning ahead===<br /> <br /> If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.<br /> <br /> If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.<br /> <br /> In either case, it's a good idea to speak to a lawyer who specializes in wills and estates issues if you think you need to change your will.<br /> <br /> ==Parental support==<br /> <br /> The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.<br /> <br /> ==The conflict of laws==<br /> <br /> The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:<br /> <br /> *spouses have property in different provinces or countries,<br /> *the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or<br /> *the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.<br /> <br /> The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.<br /> <br /> ===Children===<br /> <br /> Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:<br /> <br /> #either spouse normally lives in this province, or<br /> #both spouses agree that our courts should deal with the matter.<br /> <br /> Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.<br /> <br /> Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:<br /> <br /> #the child normally lives in British Columbia, or<br /> #the child is physically present in the province but will be at serious risk unless the original order is changed.<br /> <br /> ===Child support and spousal support===<br /> <br /> Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.<br /> <br /> ====''Divorce Act'' orders====<br /> <br /> When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."<br /> <br /> An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.<br /> <br /> ====Other orders made outside British Columbia====<br /> <br /> Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.<br /> <br /> The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.<br /> <br /> ===Property and debt===<br /> <br /> The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.<br /> <br /> Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:<br /> <br /> *the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',<br /> *the parties agree that the court should deal with the claim,<br /> *either party was "habitually resident" in the province when the court proceeding started, or<br /> *there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.<br /> <br /> If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:<br /> <br /> *dividing property here to take into <span class="noglossary">account</span> the value of the property outside the province, <br /> *making orders about respecting the care, management, or use of the property outside the province, and<br /> *making orders about ownership of the property outside the province.<br /> <br /> More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".<br /> <br /> ==Immigration issues==<br /> <br /> Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.<br /> <br /> ===Permanent resident spouses===<br /> <br /> Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:<br /> <br /> <blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote><br /> <br /> In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:<br /> <br /> <blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote><br /> <br /> However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.<br /> <br /> Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.<br /> <br /> ===Non-resident spouses===<br /> <br /> If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.<br /> <br /> ===Sponsoring spouses===<br /> If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.<br /> <br /> If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.<br /> <br /> ==Resources and links==<br /> <br /> ===Legislation===<br /> <br /> * ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''<br /> * ''[[Family Law Act]]''<br /> * ''[[Divorce Act]]''<br /> * ''[http://canlii.ca/t/840g Estate Administration Act]''<br /> * ''[http://canlii.ca/t/84g0 Wills Variation Act]''<br /> * ''[http://canlii.ca/t/84fx Wills Act]''<br /> * ''[http://canlii.ca/t/7w02 Civil Marriage Act]''<br /> * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''<br /> * ''[http://canlii.ca/t/84g5 Adoption Act]''<br /> * ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''<br /> <br /> ===Links===<br /> <br /> *[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]<br /> *[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown] <br /> <br /> <br /> {{REVIEWED | reviewer = [[JP Boyd]], May 20, 2013}}<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}<br /> {{Creative Commons for JP Boyd}}<br /> <br /> [[Category:JP Boyd on Family Law]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Talk:Gayle_Raphanel&diff=13517 Talk:Gayle Raphanel 2013-06-07T19:19:14Z

<p>Gayle Raphanel: Redirected page to User talk:Gayle Raphanel</p> <hr /> <div>#REDIRECT [[User talk:Gayle Raphanel]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Gayle_Raphanel&diff=13516 Gayle Raphanel 2013-06-07T19:18:52Z

<p>Gayle Raphanel: </p> <hr /> <div><noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor<br /> | bio = '''Gayle Raphanel''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Other Family Law Issues]]. Gayle was called to the BC Bar in 1981, and practices family law in Vancouver under her firm, Raphanel & Courtenay. She is an experienced mediator and has been a member of [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] since 2001. <br /> <br /> Gayle qualified as a family law mediator in 1984 and in 1986 was appointed to the first panel of mediators for ICBC personal injury claims. In 1992 she worked extensively with the British Columbia Medical Association as a mediator in their Relative Value fee negotiations. She sat on the Hospital Appeal Board from 1996 to 2000. <br /> <br /> Gayle has taught and presented on topics relating to alternative dispute resolution and mediation several times through seminars and courses with the Canadian Bar Association, Trial Lawyers Association of BC, and the Law Society of BC's Professional Legal Training Course. <br /> <br /> <br /> | name = Gayle Raphanel<br /> | image = [[image:graphanel.gif|130px|left|link=|Gayle Raphanel]]<br /> | organization = Raphanel & Courtenay<br /> | website = <br /> }}<br /> <br /> <noinclude><br /> [[Category:Contributor Bio|Raphanel]]<br /> [[Category:JP Boyd on Family Law Contributors|Raphanel]]<br /> </noinclude></div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=User:Gayle_Raphanel&diff=13515 User:Gayle Raphanel 2013-06-07T18:55:06Z

<p>Gayle Raphanel: Redirected page to Gayle Raphanel</p> <hr /> <div>#REDIRECT [[Gayle Raphanel]]</div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Gayle_Raphanel&diff=13511 Gayle Raphanel 2013-06-07T00:49:30Z

<p>Gayle Raphanel: </p> <hr /> <div><noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor<br /> | bio = '''Gayle Raphanel''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Other Family Law Issues]]. <br /> <br /> <br /> | name = Gayle Raphanel<br /> | image = [[image:graphanel.gif|130px|left|link=|Gayle Raphanel]]<br /> | organization = <br /> | website = <br /> }}<br /> <br /> <noinclude><br /> [[Category:Contributor Bio|Raphanel]]<br /> [[Category:JP Boyd on Family Law Contributors|Raphanel]]<br /> </noinclude></div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=File:Graphanel.gif&diff=13510 File:Graphanel.gif 2013-06-07T00:49:09Z

<p>Gayle Raphanel: </p> <hr /> <div></div>

Gayle Raphanel https://wiki.clicklaw.bc.ca/index.php?title=Gayle_Raphanel&diff=13509 Gayle Raphanel 2013-06-07T00:48:49Z

<p>Gayle Raphanel: Created page with "<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor | bio = '''Gayle Raphanel''' is a senior subject editor for ''JP Boyd on Family Law'', and ..."</p> <hr /> <div><noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor<br /> | bio = '''Gayle Raphanel''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Other Family Law Issues]]. <br /> <br /> <br /> | name = Gayle Raphanel<br /> | image = [[image:graphanel.gif|150px|left|link=|Gayle Raphanel]]<br /> | organization = <br /> | website = <br /> }}<br /> <br /> <noinclude><br /> [[Category:Contributor Bio|Raphanel]]<br /> [[Category:JP Boyd on Family Law Contributors|Raphanel]]<br /> </noinclude></div>

Gayle Raphanel