Family Violence Overview

From Clicklaw Wikibooks
JP Boyd on Family Law
JP Boyd on Family Law
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from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

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Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Family Violence
 · FLA & Divorce Act

 · Criminal Code

 · Civil Claims

 · Child Protection
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
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Since 2020: Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams
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Clicklaw has critical resources and
common questions on family violence issues.


If you are in danger

If your physical safety is in immediate danger, start here first:

  • If you are in immediate danger, call 911.
  • For crisis support, dial VictimLINK at 1-800-563-0808 for confidential and multilingual service.
  • For more information, visit the Clicklaw website (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety."

Overview of the various laws around family violence

This chapter talks about the laws and legal mechanisms for dealing with family violence. (Other terms, such as gender-based violence, domestic violence, and intimate partner violence, are more commonly used by anti-violence organizations and have meanings that are similar to family violence.) It covers:

  • the provincial Family Law Act, its definition of family violence, and mechanisms for keeping family members safe and able to work on resolving their family matters,
  • the federal Divorce Act and its definition of family violence, and mechanisms for keeping spouses and children safe and able to work on resolving their family matters,
  • the provincial Child, Family and Community Service Act, and how family violence intersects with child protection issues,
  • family violence in the context of the federal Criminal Code, with information for those who have experienced family violence and those accused of crimes, and
  • the law of torts, another area of the civil law, that lets people ask for compensation when they have been harmed as a result of the actions of other people.

The Family Law Act

Under the Family Law Act, the term family violence includes physical, emotional, sexual, and financial abuse. This includes harmful behaviour such as threats, harassment, emotional abuse, and even acts that harm someone's financial independence and autonomy. Women, gender-diverse people, and children continue to be disproportionately impacted by family violence, in particular Indigenous women, women with disabilities, racialized women, and members of the 2SLGBTQIA+ community.

The legal system's concept of family violence has expanded beyond physical violence, reflecting how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have a similar if not greater impact on the safety of family members than physical violence, and can have a significant impact on the outcome of a family law dispute. In many cases, more than one of these types of family violence may be present, and different types of family violence may be used at different times during the relationship. However, the presence of even one type of violent behaviour will meet the definition of family violence and may need to be taken into account when resolving the legal issues that come up when a relationship ends.

The Family Law Act offers a few ways for dealing with family violence, including protection orders, conduct orders, and rules that require the court to consider family violence when deciding what is in the best interests of children.

The act also requires that all "family dispute resolution professionals," a term which includes lawyers, family justice counselors and mediators, assess the potential for family violence in their cases. Where warning signs of family violence are present, lawyers must first determine if there are any safety risks to their client and their client's family members. They must also assess the degree to which family violence might be impairing the ability of their client to speak for themselves, advocate for their interests, and negotiate a fair agreement.

The Family Law Act and the Divorce Act both require the court to consider the impact of coercive and controlling behaviour and family violence when making decisions about children.

The Divorce Act

The Divorce Act also has a definition of family violence. Like the definition in the Family Law Act, the Divorce Act definition includes more than physical violence. It includes sexual abuse, threats to kill or harm someone, harassment, psychological abuse, financial abuse, and threats to harm an animal or damage property.

Like the definition in the Family Law Act, the Divorce Act also requires judges to consider family violence when making decisions about the parenting arrangements that are in the best interests of children.

Child protection

The law that deals with child protection issues is the provincial Child, Family and Community Service Act. Each province has its own law about child protection, and these laws can be very different from province to province.

In British Columbia, the Ministry of Children and Family Development can get involved if children are being harmed or at risk of being harmed. In the case of Indigenous children, an Indigenous authority may step in instead of the MCFD, and offer support or protection. This chapter takes a brief look at some child protection issues, what happens when a report of a protection concern is made, and discusses when children may be placed in the care of MCFD or an Indigenous authority.

Family violence and the criminal law

Where a family member has committed family violence, they may have also committed a criminal offence and may be charged with an offence by the police. Criminal cases are handled differently than family law and other kinds of civil case. This chapter provides an introduction to the ways that criminal law can affect family law cases involving family violence.

If charges are laid under the Criminal Code, the accused person may be ordered to have no contact with the complainant, often called a no contact order. Other orders that could be made include not being allowed to have weapons, or not being allowed to go to the complainant’s home, school or workplace, often called a no go order. If a person charged with a criminal offence is convicted of the offence, their sentence could include further court orders or even time in jail.

The Criminal Code also provides for peace bonds. Peace bonds are not criminal convictions or sentences, but can be used to order an accused person not have to contact with the complainant. Peace bonds can be obtained against abusers of all kinds, including people in a dating relationship, even if they do not meet the requirements for a protection order under the Family Law Act.

Family violence and the civil law

Where a family member suffered family violence, they may have a "cause of action" under the civil law. A cause of action is the right to sue for something, usually compensation. Being wrongfully fired or hit by a car in a crosswalk can give you a cause of action. If you were assaulted by someone, including in a family relationship, you might have a "cause of action" for assault or battery.

Civil law is a broad area of law, and it includes the law of torts, sometimes known as personal injury law. The law of torts can address not just physical assaults, but a wide range of other harmful actions including violating someone's property or damaging someone's property. The result of a successful tort claim is typically financial compensation, called damages.

This chapter takes a brief look at how tort claims related to family violence can be brought with or alongside a regular family law case, and reviews some of the common difficulties people experience bringing tort cases.

Resources and links

Legislation

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams, 16 June 2023.


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