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Difference between revisions of "Family Violence in the Family Law Act and the Divorce Act"
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Family Violence in the Family Law Act and the Divorce Act (view source)
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* In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, a parent's derogatory and demeaning comments about the other parent, on occasion in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm. | * In ''[http://canlii.ca/t/gx9s1 K.R. v. J.D.]'', 2017 BCSC 182, a parent's derogatory and demeaning comments about the other parent, on occasion in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm. | ||
* In ''[http://canlii.ca/t/fxjb5 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. | * In ''[http://canlii.ca/t/fxjb5 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. | ||
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the | * In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct which included sending excessive demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence. | ||
* In ''[http://canlii.ca/t/gh679 R. (C.) v. (M.A.)]'', 2015 BCPC 76 the | * In ''[http://canlii.ca/t/gh679 R. (C.) v. (M.A.)]'', 2015 BCPC 76 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. | ||
* In ''[http://canlii.ca/t/g7233 R. (L.A.) v. R. (E.J.)]'', 2014 BCSC 966, the | * In ''[http://canlii.ca/t/g7233 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. | ||
* ''[http://canlii.ca/t/glx9n F.(C.) v. V. (D)]'', 2015 BCPC 309, the | * ''[http://canlii.ca/t/glx9n 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. | ||
A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence: | A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence: | ||
* In ''[http://canlii.ca/t/g2zjp S. (L.) v. S. (G).]'', 2014 BCSC 187, the father wanted the | * In ''[http://canlii.ca/t/g2zjp 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. | ||
* In ''[http://canlii.ca/t/g1rsc E. (J.R.) v. 07----8 B.C. Ltd.]'', 2013 BCSC 2038 the | * In ''[http://canlii.ca/t/g1rsc E. (J.R.) v. 07----8 B.C. Ltd.]'', 2013 BCSC 2038 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. | ||
It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said: | It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said: | ||
<blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. | <blockquote>More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the ''FLA'' relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. </blockquote> | ||
==Using the ''Family Law Act'' for protection== | ==Using the ''Family Law Act'' for protection== | ||
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<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> | <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> | ||
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 | 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 under Part 9 of the ''Family Law Act''. (They can, however, apply for a peace bond under the ''Criminal Code''.) | ||
===Making protection orders=== | ===Making protection orders=== | ||
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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: | 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: | ||
*whether the child might be exposed to family violence if a protection order isn't made, and, | |||
*whether a protection order should also be made for the protection of the child. | |||
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. | 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. | ||
===Protection order terms=== | ===Protection order terms=== | ||
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*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, | *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, | ||
*limiting how the person communicates with the at-risk family member, | *limiting how the person communicates with the at-risk family member, | ||
*directing the police to remove the person from the family home or accompany | *directing the police to remove the person from the family home or accompany them to remove personal property, and | ||
*requiring the person to report to the court or to another person. | *requiring the person to report to the court or to another person. | ||
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When a protection order has been made and hasn't yet expired, either party can apply to vary the order to: | When a protection order has been made and hasn't yet expired, either party can apply to vary the order to: | ||
*extend or shorten the period of time that the order is in effect, | |||
*vary the terms of the order, or | |||
*end the order. | |||
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. | 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. | ||
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===Enforcing protection orders=== | ===Enforcing protection orders=== | ||
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 | 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: | ||
<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> | <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> | ||
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This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. 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. | This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. 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. | ||
According to s. 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following: | According to s. 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following: | ||
* | * the impact of any family violence on the child’s safety, security or well-being, | ||
* | * whether the family violence is directed toward the child or another family member, | ||
* | * whether the actions of a person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child’s needs, | ||
* | * the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, | ||
* | * any civil or criminal proceeding relevant to the child’s safety, security or well being. | ||
Where specific facts are important, the evidence you produce is important. 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 focus evidence that addresses these factors. | Where specific facts are important, the evidence you produce is important. 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 focus evidence that addresses these factors. | ||
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*restricting a person from terminating the utilities serving the family home, | *restricting a person from terminating the utilities serving the family home, | ||
*requiring a person to supervise the removal of personal property from the family home, | *requiring a person to supervise the removal of personal property from the family home, | ||
*requiring a person to post security to guarantee | *requiring a person to post security to guarantee their good behaviour, and | ||
*requiring a person to report to the court to another person, like a counsellor or therapist. | *requiring a person to report to the court to another person, like a counsellor or therapist. | ||
