Difference between revisions of "Family Violence Overview"

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{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|CoAuthor = [[Kim Hawkins]], [[Vandana Sood]], [[Elizabeth Cameron]], and [[Rosanna Adams]]
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
}}
{{Clicklawbadge
{{Clicklawbadge
|resourcetype = critical resources and <br/> common questions on
|resourcetype = critical resources and <br/> common questions on
|link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
|link = [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
}}
}}


<span style="color:#D2691E">'''Important changes'''</span> <br />
==If you are in danger==
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.


==If you are in danger==
If your physical safety is in immediate danger, start here first:
If your physical safety is in immediate danger, start here first:
* '''If you are in immediate danger, call 911.'''  
* '''If you are in immediate danger, call 911.'''  
* '''For crisis support, dial [http://www.clicklaw.bc.ca/helpmap/service/1055 VictimLINK] at 1-800-563-0808''' for confidential and multilingual service.
* '''For crisis support, dial [http://www.clicklaw.bc.ca/helpmap/service/1055 VictimLINK] at 1-800-563-0808''' for confidential and multilingual service.
* For more information, visit the [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw website] (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety."
* For more information, visit the [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw website] (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety."
* MyLawBC's abuse and family violence website is a [http://www.clicklaw.bc.ca/resource/4277 guided online tool] that asks you specific questions about your situation and gives you an action plan.
The rest of this chapter talks about the various laws related to family violence. Reading it will take some time and focus.


==Overview of the various laws around family violence==
==Overview of the various laws around family violence==
This chapter covers laws and legal mechanisms used to address family violence. Because family violence is not only a ''family law'' topic, the chapter discusses overlapping areas of law, including:
 
* the ''[[Family Violence and the Family Law Act|Family Law Act]]'' and its treatment of 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:
* [[Family Violence and Child Protection|child protection]] issues,
 
* family violence in the [[Family Violence and the Criminal Code |context of Canada's ''Criminal Code'']], with information for victims of crime and those accused, and
* the provincial ''[[Family Violence and the Family Law Act|Family Law Act]]'', its definition of family violence, and mechanisms for keeping family members safe and able to work on resolving their family matters,
* [[Suing for Family Violence in a Family Law Claim|civil claims]] and the ''law of torts'' which are designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.
* 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 ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', and how family violence intersects with [[Family Violence and Child Protection|child protection]] issues,
* family violence in the context of the federal [[Family Violence and the Criminal Code |''Criminal Code'']], with information for those who have experienced family violence and those accused of crimes, and
* the [[Suing for Family Violence in a Family Law Claim|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''===
===The ''Family Law Act''===
Family violence includes physical and sexual forms of abuse, but under the ''[[Family Law Act]]'' it also includes harmful behaviour such as threats, harassment, emotional abuse, and even acts that harm someone's financial autonomy.  
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 fact that the legal system's concept of violence has expanded beyond brute physical assault reflects a more responsive attitude towards the realities of how abuse among family members impacts victims and families. The impacts are not always physical. Fear and intimidation can have as much or even a greater impact than physical violence on the outcome of a family law dispute.
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'' defines family violence and provides mechanisms for dealing with it, such as ''family law protection orders''.
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.


Note that the ''Family Law Act'' has taken proactive measures against family violence. It is now mandatory for family law professionals to assess the potential for family violence and react accordingly. The ''Family Law Act'' requires all family dispute resolution professionals (lawyers, family justice counselors, mediators, etc.) to watch for warning signs of family violence in relationships. Where warning signs are present, legal professionals try not only to determine ''safety risks'' but also the degree to which family violence might be impairing the abused party's ability to speak for themselves, advocate for their interests, and negotiate a fair agreement.  
===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===
===Child protection===
Where children are at risk, the provincial government's ministry responsible for protecting children may become involved. The involvement of the Ministry of Children & Family Development and the authority of the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]]'' RSBC 1996, c 46, may influence your family law proceeding dramatically. This chapter takes a <span class="noglossary">brief</span> look at some child protection issues, what happens when a report is made, and when children may be placed in the care of the ministry.


===Criminal law context===
The law that deals with child protection issues is the provincial ''[http://canlii.ca/t/84dv 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.
Where domestic violence exists, both family law and criminal law can be involved. This chapter provides an introduction to the ways that criminal law deals with family violence.
 
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 <span class="noglossary">brief</span> 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===


The ''Criminal Code'' provides for ''peace bonds'', which are mechanisms to protect you from another person. They are protection orders and can be obtained against abusers of all kinds, including an abuser you dated, as well as an abusive spouse.
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.


===Civil law context===
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.  
When individuals and corporations talk about suing each other, they are talking about  enforcing their rights in ''civil law'' using the courts. A right to sue for something is called a ''cause of action''. Being wrongfully fired or hit by a car in a crosswalk can give you a cause of action. A dishonoured loan can create a cause of action. So too domestic assault, or indeed assaults on anyone, can give rise to a cause of action.


Civil law is a broad area of law, and it includes the ''law of torts'', better known as personal injury law. People who assault others can be sued for the damages they caused. If you were assaulted by someone outside of a family relationship, you might pursue your ''cause of action'' in a lawsuit for assault.  
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''.


Where the abuser and victim are ex-partners, however, and a family law proceeding has already been started, it is more common to see the cause of action become part of a ''[[Form F3 Notice of Family Claim|Notice of Family Claim]]''.
===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==
==Resources and links==
Line 53: Line 69:


* ''[[Family Law Act]]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]
* [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]
* ''[http://canlii.ca/t/8487 Negligence Act]''
* [https://canlii.ca/t/b8rn Provincial Court Family Rules]
* ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''
* [https://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/8qx3 Limitation Act]''


===Resources===
===Resources===
* E-book by Dr. Linda C. Neilson, ''[http://commentary.canlii.org/w/canlii/2017CanLIIDocs2 Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases]'' (CanLII February 2017)
* E-book by Dr. Linda C. Neilson, ''[http://commentary.canlii.org/w/canlii/2017CanLIIDocs2 Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases]'' (CanLII February 2017, updated March 2020)
===Links===
* Legal Aid BC & YWCA, ''[https://www.clicklaw.bc.ca/resource/2231 Mothers Leaving Abusive Partners: Family Law Information]''
 
* Rise Women’s Legal Centre, ''[https://perma.cc/5ADM-E22W Are We Ready to Change? A Lawyer’s Guide to Keeping Women and Children Safe in BC’s Family Law System]''
*[https://www.clicklaw.bc.ca/resource/1317 Dial-A-Law Script "Peace Bonds and Assault Charges"]
* Rise Women’s Legal Centre, ''[https://perma.cc/UJN7-UJA8 Decolonizing Family Law Through Trauma-Informed Practices]''
*[https://www.clicklaw.bc.ca/resource/1319 Ministry of Attorney General's Community Safety and Crime Prevention Branch and Legal Services Society's booklet ''For Your Protection: Peace Bonds and Family Law Protection Orders'']
* Rise Women’s Legal Centre, ''[https://perma.cc/8VWS-7QFU Creating Safety in BC Courts: Key Challenges and Recommendations]''
*[https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources on abuse and family violence]
* West Coast LEAF, ''[https://perma.cc/84US-8G5L Pathways in a Forest: Indigenous Guidance on Prevention-Based Child Welfare]''
*[https://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources on child protection]
* VictimLINK crisis support line: 1-800-563-0808
*[https://www.lss.bc.ca/publications/subject.php?sub=4 Legal Services Society's publications on abuse and family violence]
* Battered Women's Support Services [https://www.bwss.org/ website] and crisis support line: 1-855-687-1868
*[https://clicklaw.bc.ca/resource/4642 Legal Services Society's Family Law website's information page "Child protection"]
* Rise Women’s Legal Centre: 1-236-317-9000 or complete an appointment request at https://womenslegalcentre.ca/
* More legal advice, representation and advocacy services related to abuse and family violence on [https://www.clicklaw.bc.ca/helpmap/search?so=r&f=Abuse+%26+family+violence Clicklaw's HelpMap website]
* Rise Women's Legal Centre, ''[https://www.clicklaw.bc.ca/resource/5032 Seeking a Peace Bond: A Guide]'' (available in 12 languages)
* Dial-A-Law Script [https://www.clicklaw.bc.ca/resource/1317 "Peace Bonds and Assault Charges"]
* Ministry of Attorney General's Community Safety and Crime Prevention Branch and Legal Aid BC's booklet [https://www.clicklaw.bc.ca/resource/1319 ''For Your Protection: Peace Bonds and Family Law Protection Orders'']
* [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources on abuse and family violence]
* [https://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources on child protection]
* Legal Aid BC's [https://legalaid.bc.ca/publications/subject/4 publications on abuse and family violence]
* Legal Aid BC's Family Law website's information page [https://clicklaw.bc.ca/resource/4642 "Child protection"]
* Rise Women's Legal Centre, ''[https://www.clicklaw.bc.ca/resource/4886 Why Can't Everyone Just Get Along?]''
* Justice Canada's ''[https://www.justice.gc.ca/eng/fl-df/help-aide/index.html HELP Toolkit: Identifying and Responding to Family Violence]''


{{REVIEWED | reviewer = [[Fiona Beveridge]] and [[Samantha Simpson]], April 30, 2019}}
{{REVIEWED | reviewer = [[Rise Women's Legal Centre|Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams]], 16 June 2023}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 23:12, 15 January 2024


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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