Difference between revisions of "Family Violence Overview"

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==Introduction==
==Introduction==
Family violence includes physical and sexual forms of abuse, but it also includes harmful behaviour such as threats, harassment, emotional abuse and even acts that harm someone's financial autonomy.
Increasingly, the legal system has become more responsive to the realities of family violence, its traumatic effects, and its victims. Legal professionals who work in family law have become more proactive when it comes to assessing the potential for family violence and intervening 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 impairs the abused party's ability to speak for themselves, advocate for their interests and negotiate a fair agreement.
This chapter covers laws and legal mechanisms that are useful in addressing family violence. Because family violence is not just a family law topic, this chapter approaches family violence in the context of overlapping areas of law, including:
This chapter covers laws and legal mechanisms that are useful in addressing family violence. Because family violence is not just a family law topic, this chapter approaches family violence in the context of overlapping areas of law, including:
* the ''[[Family Law Act]]'' and its treatment of family violence,
* the ''[[Family Law Act]]'' and its treatment of family violence,
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* civil claims and the ''law of torts'' designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.
* civil claims and the ''law of torts'' designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.


==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.


Family violence includes physical abuse, but also non-physical forms of abuse. Section 1 of the ''[[Family Law Act]]'' defines the term:
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.
 
<blockquote><tt>"family violence" includes</tt></blockquote>
<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>
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>
 
So far, the courts have ruled that a broad range of actions constitute ''family violence''.  The following are just some examples of family violence: 
* 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 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.
* 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 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 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:
 
* 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 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.  
 
Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a ''[[Form F3 Notice of Family Claim|Notice of Family Claim]]'' could include a claim for payment of damages resulting from the violence.
 
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.
 
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.
 
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.  


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.
The ''Family Law Act'' defines family violence and provides mechanisms for dealing with it, such as ''family law protection orders''.


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.
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.  


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.  
==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 can influence family law proceedings. This chapter takes a <span class="noglossary">brief</span> look at some child protection issues, what happens when a report is made, and how children can be placed in the care of the ministry.


If you are punched by someone, for example, that person's conduct may result in both:
==Criminal law context==
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.


#a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and
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 rather than an abusive spouse.  
#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.


Possible punishments for someone found criminally guilty include:
==Civil law context==
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 dishonored loan can create a cause of action. So too domestic assault, or indeed assaults on anyone, can give rise to a cause of action.


* fines,
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.  
* a jail sentence,  
* both a fine and a jail sentence, or
* imposed terms or conditions, like a restraining order or a peace bond.


In contrast, the goal of civil law is compensation for the victim more so than punishment of the offender. Compensation is for the harm they suffered. Normally, this takes the form of ''damages'', a financial award intended to compensate for things like pain and suffering, lost wages, rehabilitation and medical expenses, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful 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]]''.

Revision as of 19:03, 4 August 2017

JP Boyd on Family Law
JP Boyd on Family Law
This page is

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

and the list of contributors.
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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Clicklaw has critical resources and
common questions on family violence issues.


If you are a victim of family violence

This chapter talks about the laws related to family violence. Immediate physical safety comes first, however.

  • 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".
  • The MyLawBC website has an up-to-date tool that answers question about abuse and family violence and can give you an action plan.

Introduction

This chapter covers laws and legal mechanisms that are useful in addressing family violence. Because family violence is not just a family law topic, this chapter approaches family violence in the context of overlapping areas of law, including:

  • the Family Law Act and its treatment of family violence,
  • Child protection issues,
  • Canada's criminal justice system, with information for victims and those accused, and
  • civil claims and the law of torts designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.

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.

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 Family Law Act defines family violence and provides mechanisms for dealing with it, such as family law protection orders.

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.

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 can influence family law proceedings. This chapter takes a brief look at some child protection issues, what happens when a report is made, and how children can be placed in the care of the ministry.

Criminal law context

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.

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 rather than an abusive spouse.

Civil law context

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 dishonored 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.

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 Notice of Family Claim.

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