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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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Nate Russell (talk | contribs) m (Nate Russell moved page Family Violence and the Family Law Act to Family Violence in the Family Law Act and the Divorce Act: new title for edition 2020) |
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|link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues] | |link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues] | ||
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==Family violence under the ''Family Law Act''== | ==Family violence under the ''Family Law Act''== | ||
Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about: | Family violence is dealt with under the ''[[Family Law Act]]'' when there are questions about: | ||
* protecting an at-risk family member from another family member, and/or | * protecting an at-risk family member from another family member, and/or | ||
* parenting arrangements and | * parenting arrangements and what is in the best interests of a child. | ||
Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following, or going near another family member, or from possessing weapons. These are discussed first. | Part 9 of the ''Act'' deals with protection orders that can restrain a family member from communicating with, following, or going near another family member, or from possessing weapons. These are discussed first. | ||
Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 show how important family violence is as a factor to consider when assessing the ''best interests of a child'', or making an agreement or order about care of and time with children. | Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 show how important family violence is as a factor to consider when assessing the ''best interests of a child'', or making an agreement or order about care of and time with children. | ||
===Definition of family violence=== | ===Definition of family violence=== | ||
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<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> | <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== | |||
The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as a ''recognizance'' under the ''Criminal Code''. | The ''[[Family Law Act]]'' offers a number of different restraining orders that can be very helpful and can provide the same level of protection as a ''recognizance'' under the ''Criminal Code''. | ||
===Protection orders under Part 9=== | ====Protection orders under Part 9==== | ||
Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 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. | Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 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. | ||
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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''.) | 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==== | ||
When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1): | When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1): | ||
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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. 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 section 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. 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 section 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==== | ||
The available protection orders are listed at section 183(3) and include orders: | The available protection orders are listed at section 183(3) and include orders: | ||
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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], or read the information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders". | 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], or read the information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders". | ||
===Changing protection orders=== | ====Changing protection orders==== | ||
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: | ||
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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. | ||
===Enforcing protection orders=== | ====Enforcing protection orders==== | ||
Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this: | Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this: | ||
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<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote> | ||
==Family violence and the best interests of the child analysis== | ===Family violence and the best interests of the child analysis=== | ||
Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child. | Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child. | ||
A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities. | A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities. | ||
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 | 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 section 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following: | According to section 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, | * the impact of any family violence on the child’s safety, security, or well-being, | ||
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* 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, | * 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, and | * the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, and | ||
* any civil or criminal proceeding relevant to the child’s safety, security, or | * 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 on 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 on evidence that addresses these factors. | ||
===Conduct orders=== | |||
==Conduct orders== | |||
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other. | Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other. | ||
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Conduct orders can be enforced in a number of ways under section 228, 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. | Conduct orders can be enforced in a number of ways under section 228, 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. | ||
==Other orders== | ===Other orders=== | ||
Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence. | Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence. | ||
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*'''Supervised parenting time and contact:''' Under sections 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. | *'''Supervised parenting time and contact:''' Under sections 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. | ||
*'''Conditions of parenting time and contact:''' Under section 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. | *'''Conditions of parenting time and contact:''' Under section 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. | ||
==The ''Divorce Act''== | |||
Before March 2021, the ''[[Divorce Act]]'' did not mention family violence. The new amendments changed that, and there is now a broad definition of family violence more in keeping with how the ''Family Law Act'' treats it. | |||
Since March 2021, judges now have a long list of best-interests factors to take into consideration when making decisions about children. The factors include things like: | |||
* the history of the children's care | |||
* the children's views and preferences | |||
* each spouse's plan for the care of the children, and | |||
* the extent to which each spouse will support the children's relationship with the other spouse. | |||
Family violence is another important factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence. | |||
Both acts also now require the court to consider the impact of coercive control and family violence when making decisions about children, something that the ''Divorce Act'' did not used to require. And because family violence is significantly harmful to children who witness it, the new ''Divorce Act'' now clarifies that exposing a child to acts of family violence against someone else is family violence against the child. | |||
Another benefit of the amendment to the ''Divorce Act'' is that the victims of family violence no longer have to establish proof beyond a reasonable doubt to prove their abuse. | |||
===Definition of family violence under the ''Divorce Act''=== | |||
The newly added definition of family violence at section 2(1) of the ''Divorce Act'' is broadly defined: | |||
<blockquote><tt>''family violence'' means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) sexual abuse;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) threats to kill or cause bodily harm to any person;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) harassment, including stalking;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(e) the failure to provide the necessaries of life;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(f) psychological abuse;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(g) financial abuse;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(h) threats to kill or harm an animal or damage property; and</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(i) the killing or harming of an animal or the damaging of property; (''violence familiale'')</tt></blockquote></blockquote> | |||
==Resources and Links== | ==Resources and Links== | ||
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===Forms=== | ===Forms=== | ||
* [[PCFR Form | * [[PCFR Form 12 Application About a Protection Order]] | ||
===Links=== | ===Links=== | ||
* [http://www.clicklaw.bc.ca/resource/4105 Protection Orders — Questions and Answers] | * [http://www.clicklaw.bc.ca/resource/4105 Protection Orders — Questions and Answers] | ||
* [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders] | * [http://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders] | ||
* [https://www.clicklaw.bc.ca/resource/4657 Legal | * [https://www.clicklaw.bc.ca/resource/4920 How can I get an urgent protection order or have one set aside?] from the Provincial Court of British Columbia | ||
** See "Family law protection orders | * [http://www.clicklaw.bc.ca/resource/4101 How to Apply for a Family Law Protection Order] | ||
* [https://www.clicklaw.bc.ca/resource/4657 Legal Aid BC's Family Law website's information page "Protecting yourself & your family"]: | |||
** See "Family law protection orders" | |||
