Family Violence in the Family Law Act and the Divorce Act

Family violence under the Family Law Act

The Family Law Act addresses family violence in the context of:

• protecting an at-risk family member from another family member, and
• parenting arrangements and deciding what is in the best interests of a child.

Sections 182 to 191 of the Family Law Act deal with protection orders. These are special orders that restrict a family member from communicating with or going near another family member. They can restrict the possession of weapons, or direct police officers to help in removing people or belongings from residences. If someone who is subject to a protection order breaks the terms of the order, they may be criminally charged for breaking a court order. Protection orders are sent to a special Protection Order Registry by court services and enforced under the Criminal Code in criminal court.

Sections 222 to 228 of the act deal with conduct orders, a category of orders used to manage behaviours that might frustrate the resolution of a family law dispute. Conduct orders can also restrain a family member from communicating with, following, or going near another family member, but are enforced in family court rather than criminal court.

Sections 37 and 38 of the act talk about children's parenting arrangements and how family violence must be considered by parents and judges when what is in the best interests of a child and when making orders and agreements about parental responsibilities, parenting time and contact.

"Family members"

Protection orders are available when a family member is at risk, or is likely at risk, of family violence. Section 1 of the act says who qualifies as a "family member":

"family member", with respect to a person, means

(a) the person's spouse or former spouse,

(b) a person with whom the person is living, or has lived, in a marriage-like relationship,

(c) a parent or guardian of the person's child,

(d) a person who lives with, and is related to,

(i) the person, or

(ii) a person referred to in any of paragraphs (a) to (c), or

(e) the person's child,

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)

This definition includes spouses, parents, children and other people in the definition of "family member." However, if you read the definition carefully, you will notice that people who are

• dating,
• in another kind intimate relationship but aren't living together, and
• roommates and not in an intimate relationship,

aren't included in the definition. As a result, people in these relationships cannot apply for protection orders under the Family Law Act. People in these relationships should read the Criminal Code section of this chapter for the options that may be available to them.

"Family violence"

The Family Law Act defines family violence broadly and, in addition to physical and sexual abuse, as including a variety of other forms of abuse such as psychological abuse, harassment, coercion, threats and restricting a family member’s financial independence and autonomy. The definition extends to situations where children may be harmed through exposure to family violence, and to situations someone threatens to harm or harms pets or property. There is no requirement that the violent family member have an intention to follow through on threats in order for those threats to be considered family violence. There is also no requirement for the violent family member to actually intend to cause harm for their actions to be considered family violence.

"Family violence" is defined in section 1 of the act:

“family violence” includes, with or without an intent to harm a family member,

(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,

(b) sexual abuse of a family member,

(c) attempts to physically or sexually abuse a family member,

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence

It's important to know that a child's exposure to family violence, directly or indirectly, is considered family violence under the definition in section 1. Direct exposure would include situations where a child is the target of family violence; indirect exposure includes situations where the child is impacted by family violence, for example by witnessing it.

The courts have found that a wide range of actions can fit into the definition of family violence. Here are just a few examples of situations that have been found to qualify as "family violence":

• Barendregt v Grebliunas, 2022 SCC 22: In this case the mother had suffered due to the father’s controlling nature and overbearing personality. The father continued his hostile behavior during the trial, adding a nude selfie of the mother in an affidavit purely to humiliate her. The Supreme Court of Canada agreed with the trial judge's findings and allowed the mother to relocate, emphasizing that domestic abuse and family violence impacts the children and it is appropriate to negatively judge the perpetrator's parenting ability based on their behaviour.
• K.S.P. v. B.R.J., 2023 BCSC 886: The court ruled that throwing an object at a person during an argument constitutes family violence.
• K.L. v. A.P., 2022 BCPC 214: The court declared that the father’s pattern of harassing, degrading and aggressive messages, secret video recording, and conflicts requiring police intervention was family violence.
• M.S.R. v. D.M.R., 2022 BCSC 1398: By alienating the child from the mother, the father had engaged in family violence. The court noted that “the harm [was] ongoing and [did] represent a pattern of controlling behaviour directed at the child.”
• K.S.P. v. J.T.P., 2022 BCSC 1727: The court determined it would be abusive to allow the husband to challenge findings of domestic violence already made in three separate hearing, even though there were pending appeals on two orders.
• K.R.L. v. N.P., 2021 BCPC 324: The father's “hateful, cruel and vulgar” text messages to the mother were "staggeringly voluminous and unrelenting” and found to be psychologically and emotionally abusive.
• T.M.H. v. P.J.H., 2020 BCSC 804: The father committed family violence when used parenting time as a means to bully and harass the mother. He violated the boundaries of communication and sent messages to the children that were “manipulative, emotionally abusive and a breach of trust”.
• C.M.C. v. J.C.P., 2020 BCSC 2005: The father’s text messages, including statements that the mother “could not get ‘any dumber’” and was a liar” and suggesting that the mother's parenting was putting his and the child's life in danger, were emotionally abusive. The father’s communications caused stress to the child and emotional harm.
• D.A.B. v. C.A.S., 2020 BCSC 807: Disparaging and inappropriate comments, including comment made in front of the children, constituted family violence.
• T.C. v. K.C., 2019 BCSC 1299: The court held that it was a "significant violation" of "personal autonomy" for the father to lift up and remove the mother from their bedroom when she refused to leave on her own. It amounted to family violence.
• C.A.L. v. D.E.L., 2018 BCSC 772: In an acrimonious separation, the past conduct and the current circumstances are all relevant. When analyzing the risk of family violence and the factors in s. 184 of the Family Law Act, judges must take a “broad and contextual perspective” by looking at the parties' history, communication patterns, and surrounding circumstances.
• Primeau v. L’Heureux, 2018 BCSC 740: The court found a pattern of coercive and controlling behaviour by the father. He deliberately jeopardized the mother's livelihood by speaking ill of her to clients, caused her a loss of income (while at the same time not paying court-ordered child support reliably), made baseless complaints against her to the RCMP, failed to communicate reasonably, and used the child as a "pawn" in order to get back at the mother.
• S.A.H. v. J.J.G.V., 2018 BCSC 2278: The father's constant assertion that the mother's and the children's actions were sinful and evil amounted to "spiritual abuse", which fits into the broad definition of family violence in the Family Law Act. By "painting himself with truth and goodness and the claimant with lies and evil" he unintentionally tormented the children by forcing them to side with the "alleged evil in order to be with the mother they love".
• N.M.A. v. K.D.L., 2018 BCSC 1879: Derogatory and abusive language in emails can go beyond mere argument, and turn into emotional abuse and family violence. The father went beyond mere bickering and unpleasantness, and his repetitive, unrestrained and vulgar language, especially over an extended period of time, became emotional abuse and family violence.
• S.A.W. v. P.J.W., 2018 BCPC 376: The court found a distinction between "mere arguments and insulting discourse", or even "nasty or spiteful arguments", and behaviour that is so "belittling, demeaning, and insulting" (and repeated frequently in front of a child), that it was at a different level and fit the broad definition of family violence, although likely at the lower end of the scale.
• J.S.R. v. P.K.R., 2017 BCSC 928: The father’s threats to kill himself, which were delivered in such a manner that they became known to the children, were found to be a form of psychological abuse and family violence.
• K.D.R. v. J.N.D., 2017 BCSC 182: A parent's derogatory and demeaning comments about the other parent, on occasion and in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
• C.L.M. v. M.J.S., 2017 BCSC 799: The mother’s litigation conduct was a form of emotional abuse and harassment that constituted family violence. This included persistent failure to cooperate with litigation, a lack of cooperation with sale of the family home, failure to follow court orders, failure to attend court, failure to respond to correspondence or provide full financial disclosure, and general obstructive behaviour.
• M.W.B. v. A.R.B., 2013 BCSC 885: The mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders drafted by lawyers. These actions prolonged and intensified the litigation.
• Hokhold v. Gerbrandt, 2014 BCSC 1875: The father's emotionally abusive conduct, which included sending excessive and demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
• C.R. v. A.M., 2015 BCPC 76: The father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” was family violence.
• L.A.R. v. E.J.R., 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.
• F.(C.) v. V. (D), 2015 BCPC 309: Family violence includes breaking the mother’s cellphone and smashing a picture on the wall while holding the child, then kicking through the door to the bathroom where the mother was trying to escape and call police.
• J.C.P. v. J.B., 2013 BCPC 297: A deliberate failure to pay child support, where it was a “calculated and deliberate act designed to inflict psychological and emotional harm and to control [the other party’s] behaviour”, is family violence.

A lot depends on the specific facts of the case, however, and evidence is very important. In J.R.E. 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. And courts take a dim view of family violence claims if they are brought with other motivations. In L.S. v. G.S., 2014 BCSC 187, the court said:

"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."

Using the Family Law Act for protection

The Family Law Act offers a number of different remedies that may be helpful in protecting family members from family violence. In September 2021, the BC Government announced an online service to help people fill out and file the forms needed to get Family Law Act orders. The Apply for a Family Law Act (FLA) Order service includes a pathway specifically for getting protection orders. It could save you time and make applying for a protection order much easier.

Protection orders

Protection orders are the most useful type of order that family members can apply for under the Family Law Act to protect themselves from another family member. Under section 183(1), the at-risk family member, someone on their behalf, or the court itself can ask for a protection order. A claim for a protection order can be asked for on its own, and doesn't need to be made with any other claims under the act.

To find out more about protection orders, you may want to read the booklet “For Your Protection: Peace Bonds and Family Law Protection Orders”, or read Legal Aid BC's Family Law website's information page on "Protecting yourself & your family", under the section "Family law protection orders".

To grant a protection order, the court must find that:

1. the person asking for protection is an at-risk family member, and
2. that family violence is likely to occur by a family member against the at-risk family member.

The term "at-risk family member" is defined at section 182 of the Family Law Act:

"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member

Applying for protection orders

When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1) of the Family Law Act:

(a) any history of family violence by the family member against whom the order is to be made;

(b) whether any family violence is repetitive or escalating;

(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;

(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f) the at-risk family member's perception of risks to his or her own safety and security;

(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

Essentially, the court is must consider the family violence in the overall context of the family members' relationship, and the historic and present circumstances of their relationship. When asking for a protection order, a family member experiencing violence will need to prepare evidence of the history of violence in the relationship that address the section 184(1) factors.

Under section 184(4), the court may still make a protection order even though:

• the at-risk family member had a previous protection order, whether or not the other family member had followed that order,
• the family member against whom the order is to be made is temporarily absent from the residence,
• the at-risk family member is temporarily residing in an emergency shelter, transition house, or other safe place,
• criminal charges have or may be laid against the family member,
• the at-risk family member has a history of going back to the other family member after other incidents of family violence incidents, or
• a conduct order has been made agains the family member.

In deciding whether to make a protection order where the at-risk family member is a child, section 185 says the court must also consider whether:

• the child might be exposed to family violence if a protection order isn't made, and
• a separate protection order should also be made for the protection of the child.

Here are some circumstances where courts have ordered protection orders:

• Raj v. Raj, 2022 BCSC 110: The court found considerable evidence that the father had ongoing alcohol abuse and anger issues that led to mental, emotional and physical abuse, and of recent actions that showed a risk to the mother. The protection order was granted to protect the mother and the youngest child who had been exposed to direct and indirect violence and was not in a position to protect herself given her age and vulnerability.
• K.R.L. v. N.P., 2021 BCPC 324: The father was prohibited from communicating with the mother after repeated threats and abusive communications. The court also prohibited the father, for a shorter period of time, from communicating with the child. Even if the child was not an at-risk family member, the order needed to name the child as a “specified person” in order to protect the mother.
• M.C.C. v. M.C.R.C.¸ 2019 BCSC 380: The claimant showed a pattern of coercive and controlling behaviour directed against her and to some extent the children. She was successful in getting a without-notice protection order. She had not been allowed to go the mall or hotels, was not permitted to attend important family events, and was not allowed to have her own credit card, email account, or Facebook account. The respondent had ensured that all family electronics were connected to his Apple ID and iCloud account and he tracked her movements using an iPad. The court ordered that the claimant should have exclusive occupancy of the family home and issued a conduct order restricting the respondent's communications with the children.
• N.M.A. v. K.D.L., 2018 BCSC 1879: Protection order based on derogatory and abusive communications over an extended period of time, which constituted emotional abuse. The court declined to make the protection order reciprocal, and made the order against the respondent only.
• Prasad v. Prasad, 2015 BCSC 207: Given the likelihood that the husband would react violently if he was not favoured in the division of assets, and that he would not agree to stay away from her, the court issued a permanent, non-expiring protection order. The husband was prohibited from applying to vary or amend the protection order for three years. There was a history of physical, verbal, and emotional abuse. Note that in Williams v. Williams, 2022 BCSC 517 the court said permanent protection orders are a very rare remedy “usually made to address an ongoing threat”.
• S.M. v. R.M., 2015 BCSC 1344: The court stated “judges hearing applications of this kind must approach the issue from a broad and contextual perspective, taking into account a variety of factors that frame the risk analysis in determining whether family violence is likely to occur. The inquiry is future oriented but it takes its shape from past conduct and present circumstances that inform the assessment of risk.”
• Dawson v. Dawson, 2014 BCSC 44: The judge considered the severe nature of an earlier assault and the husband's ongoing anger and hostility. These two factors convinced the judge that there was a likelihood of further family violence. This case shows that further family violence may still be likely even if only one incident occurred in the past. When deciding if family violence is "likely" under section 183(2)(a), the court must weigh the potential severity of the harm from future violence.

It's important to know that it usually will not be enough for the person seeking a protection order to just say that they are afraid or at risk of violence. Evidence of one of the section 184 risk factors must be presented to allow the court to decide if a protection order is suitable, as the court decided in Whitelock v. Whitelock, 2014 BCSC 1184.

The court may also consider how much time has passed since the family violence occurred. If the circumstances that led to family violence are no longer present, a past act of violence, despite ongoing fear from the victim, may not be sufficient grounds for making a protection order. The court will usually focus on current risk and the likelihood of future violence when determining whether a protection order is needed. In Yusufi v Yusufi, 2022 BCSC 900, the parties were in a 17-year marriage with no children. The claimant recounted a history of both physical and psychological abuse. The court found that the violence was dated, with the last incident occurring two years prior to separation, and there had been no incidents since separation despite litigation. The parties regularly attended the same place of worship without incident. A protection order was not ordered.

Even though the court won't make protection orders automatically, without proof of the risk factors, remember that:

1. A single incident of family violence may be enough to get a protection order.
2. A protection order can be granted even if some time has passed since the last incident of family violence, but the court will consider if the risk of family violence is still present. Delaying can make it more difficult to get a protection order.
3. A family member's own, subjective perception that they are at risk of harm is a factor that the court will consider.

Potential terms of protection orders

The different kinds of protection orders are listed at section 183(3) of the Family Law Act. These include orders:

• 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, or stalking the at-risk family member,
• limiting how the person communicates with the at-risk family member,
• directing the police to remove the person against whom the order is sought from the family home or accompany them to remove personal property, and
• requiring the person to report to the court or to another person.

Under section 183(3)(e), an at-risk family member can ask for any other terms that may be necessary to protect them or implement the protection order. (Judges have made orders requiring the family member to carry a copy of the order on their person when outside their place of residence, or requiring them to go to a police station to surrender any weapons that they're banned from possessing.) Protection orders remain in place for one year, unless the order specifies a different length of time. In some very serious cases, protection orders are ordered indefinitely. These are sometimes called non-expiring protection orders or permanent protection orders.

If there is an Family Law Act order that allows a family member to have contact with the children, but a protection order is made that prohibits communication with the children, the conflicting terms of the older order are suspended while the protection order is in effect. This temporary suspension of specific, conflicting terms of a Family Law Act order even applies in the situation where the other court order was made by a court in a different province, as long as the other court order from another jurisdiction is "similar in nature" to a protection order under the Family Law Act. It also applies to orders under the Criminal Code. Keep in mind that the suspension of the Family Law Act order is limited only to inconsistencies between it and the protection order, and lasts only while the protection order is in effect.

Getting protection orders without giving notice

Under section 186 of the Family Law Act, an at-risk family member can ask the judge for a protection order without the other person being told in advance. This is called a without notice application. Without notice applications are suitable when there is a risk of further or escalating violence, either because the current situation is urgent, or because an event like serving someone with court documents could trigger further risk of violence and harm.

After a protection order has been made without notice, the family member who got the order must serve it on the other family member, along with all of the application materials, including any affidavit evidence, and the order made by the court.

When the court grants protection orders without notice, it will often limit the time they are in effect. The court may also require that both parties return to court so that the person against whom the order was made can explain why the protection order isn't necessary and should be cancelled. When a protection order has been made without notice, the opposing party can always ask the court to cancel or change the order.

Changing protection orders

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 protection order is in effect,
• vary the terms of the order, or
• end the order.

When a protection order is changed, the existing protection order will be terminated and replaced, so it is important to make sure that the court is aware of any terms in the original order that need to be carried over to the new order.

Enforcing protection orders

It is a criminal offence for the family member against whom a protection order has been made to breach that order. This makes protection orders special, as they are enforced by the criminal court rather than the civil courts that usually enforce orders under the Family Law Act.

Enforcement in criminal court will occur if the police charge the family member with the offense of disobeying a court order under section 127 of the Criminal Code. Once a charge is laid under section 127, it will proceed through the regular criminal process, with the accused person having the opportunity to plead guilty or not guilty to the charge, and in the case of a not guilty plea, go to trial.

Family violence and the best interests of children

The only thing that matters when making decisions about guardianship, parenting arrangements, or contact with a child is the best interests of the child. While all of a child's needs and circumstances must be considered when determining their best interests, section 37(2) of the Family Law Act lists a number of specific factors. Sections 37(2)(g) and (h) deal with family violence:

37(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(g) 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;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

When family violence is a factor under section 37(2)(g) or (h), section 38 lists a number of additional factors that must be considered:

38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence;

(b) how recently the family violence occurred;

(c) the frequency of the family violence;

(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child;

(f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

(i) any other relevant matter.

It is important to present evidence regarding family violence to the court when asking for an order about guardianship, children's parenting arrangements, or contact with a child. When family violence is present, the orders that can be asked for include that the person responsible for family violence have no parenting time or that their parenting time is supervised, or occur in a public place or by video. It is also possible to ask for an order that they have parenting responsibilities, in order to limit the parents' need to communicate with each other.

Conduct orders

Conduct orders under sections 222 to 228 the Family Law Act give the court additional tools to help parties manage the kinds of conflict and problematic behaviours that can prevent them from resolving their family law issues. In some cases, conduct orders are used when family violence is not so severe as to require a protection order.

Conduct orders are different from protection orders, and not as well tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, require a party to attend a counselling program, or say how and when parties should communicate with each other.

While conduct orders can be seen as less extreme ways of reducing bad behaviour and hostility compared to a protection order, the court must consider whether conduct orders are enough. Under section 225, a court will not issue a conduct order restricting communication if a protection order would be more appropriate. Likewise, a court will not decline to impose a protection order just because a conduct order was previously in place.

A court can make conduct orders for one of four purposes set out at section 222:

At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:

(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;

(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;

(c) to prevent misuse of the court process;

(d) to facilitate arrangements pending final determination of a family law dispute.

Conduct orders can be used to address a wider range of issues than protection orders, which are specific to family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, or compel a party to attend a counselling program. Conduct orders may:

• require a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
• restrict communication between the parties,
• require a person to participate in family dispute resolution process,
• require a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes, and utilities,
• restrict a person from terminating the utilities serving the family home,
• require a person to supervise the removal of personal property from the family home,
• require a person to post security to guarantee their good behaviour,
• require a person to report to the court or to another person, like a counsellor or therapist, and
• include any other term the court believes necessary to fulfill one or more of the purposes listed at section 222.

Conduct orders restricting communications

Section 225 of the [Family Law Act] allows the court to make orders restricting or setting conditions on the parties' communications with each other, including when or how communication should take place.

If the family violence does not warrant a protection order, a section 225 conduct order can be made instead. Like a protection order, a conduct order can prevent a family member from communicating with or contacting another family member. Breaching a conduct order is not a criminal office, however; breaching a protection order is a criminal offence. Conduct orders are enforced in family court, not criminal court.

It is also worth considering that while protection orders are usually time-limited, conduct orders normally continue until a different court order is made. In some cases conduct orders, can last for a longer period of time.

Enforcing conduct orders

Conduct orders are enforced in family court, not criminal court.

Conduct orders can be enforced in a number of ways under section 228, including by requiring the person breaching the order to pay up to $5,000, either to the court or to the opposing party. Under section 231, a court may even order that a person be jailed for no more than 30 days. Jail time is an extremely rare remedy and will only be ordered if nothing else will secure the person's compliance with the conduct order.

Other orders

Other orders are available under the Family Law Act that could be used to address issues relating to family violence.

• 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 include exchanging the children in a public place, placing restrictions on how the parties are allowed to interact when the children are exchanged, restricting a family member to video or telephone parenting time or contact only, requiring that parenting time or contact only happen in a general or specific public place, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.
• Denial of parenting time: Sections 61 and 62 address what happens if one person or guardian denies parenting time or contact set out in a legal agreement or court order to another person or guardian.
  • Under section 61, the person denied parenting time or contact can apply to the court within 12 months for various remedies such as make-up time, requiring a party or the child to attend counselling or other programs, requiring attendance at family dispute resolution, requiring a fine be paid, or other remedies.
  • Under section 62, the court may decide that the denial was not wrongful if the guardian reasonably believed that the child might suffer family violence if the parenting time or contact with the child were exercised, or the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised. Objective evidence should be provided to the court that supports the reasonableness of the guardian’s belief in these circumstances. There are also other circumstances set out in section 62 under which a court may decide that the denial was not wrongful.
• Non-removal orders: Under section 64 of the Act, if there is a concern that a person may remove a child from British Columbia and is unlikely to return, a court may make an order that a person not remove a child from a specified geographical area. This can range from a city to the province of British Columbia, for example. This type of order does not apply when a guardian wishes to relocate with a child with notice to the other guardian.
• Exclusive occupation of the family residence: Under section 90, the court may make temporary orders, and grant one spouse exclusive occupancy of the family residence. This isn't a restraining order, and it does not prohibit the other party from entering the home, but the person with the exclusive occupation order is allowed to live there and the other person is not.

The Divorce Act

A number of important changes to the federal Divorce Act took effect on 1 March 2021, some of which talk about family violence. The new legislation includes a broad definition of family violence that is a lot like the definition of family violence in the Family Law Act. Family violence is defined at section 2(1) of the Divorce Act as follows:

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

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property; (violence familiale)

The court also has a new list of factors to consider when making decisions about children under the Divorce Act, which include factors about family violence. The best-interests factors appear at section 16 and include, at section 16(3):

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

If family violence is present, the court must consider the impact of the family violence by looking at a number of additional factors listed at section 16(4);

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

In Barendregt v Grebliunas, 2022 SCC 22, at paras 143 and 146, the Supreme Court of Canada emphasized that findings of family violence are a critical consideration under section 16(3) and 16(4) of the Divorce Act, and said that “domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable”.

The court is required by section 7.8(1) of the Divorce Act to consider the existence of any family or civil protection orders, any child protection orders, and ant orders, proceedings, undertakings, or recognizances relating to criminal matters, when making orders dealing with children or support under the Divorce Act. This means a judge can review the court files for those orders, if they're available, or ask questions to make sure that their own orders are made in coordination with any existing civil, child protection, or criminal matters. Under Rule 15-2.2 of the Supreme Court Family Rules, parties to a matter in which orders about children or support are being sought under the Divorce Act must file a statement of information for corollary relief proceedings in Form F102 in order to provide the court with this information before a parenting or support order is made.

Family violence and moving away after separation

When determining whether a guardian may relocate to a new place with a child, the parties and the court must consider the best interests of the child. As set out in sections 37 and 38 of the Family Law Act and sections 6(3) and 16(4) of the Divorce Act, one of the factors that must be considered in determining a child’s best interests is the impact of family violence.

In Barendregt v Grebliunas, 2022 SCC 22, the trial judge allowed a mother to relocate with the children in order to be closer to family support and away from family violence. The move was within British Columbia, but over 800 kilometers away. The matter was appealed up to the Supreme Court of Canada, which confirmed the order allowing relocation and said that “[b]ecause family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases”.

Additionally, section 66(2)(a) of the Family Law Act and section 16.9(3) of the Divorce Act allow a court to modify or waive the required period of notice with respect to an application to relocate with children in certain circumstances, including when there is a risk of family violence. In practice, relocation is not often allowed without notice to a child’s other guardians, so when bringing an application to relocate without notice it may be helpful to consider also seeking additional or alternative protective measures, such as protection orders, conduct orders, or restrictions on parenting, to be applied if the court does not allow relocation to occur without notice.

Family violence and spousal support

Misconduct by a spouse, which may include family violence, is not generally considered to be relevant to the issue of spousal support. However, there are exceptions to this general rule.

Section 15.2(5) of the Divorce Act says that the court "shall not take into consideration any misconduct of a spouse in relation to the marriage" when making an order for spousal support. However, there is a difference between misconduct itself and the consequences of misconduct. The Supreme Court of Canada confirmed this distinction in the case of Leskun v Leskun], 2006 SCC 25, when it said a court may not order spousal support to be paid solely because family violence has occurred, but the court may order spousal support to be paid if that family violence has negatively impacted a spouse’s ability to become self-sufficient.

Similarly, section 166 of the Family Law Act provides that in making an order for spousal support the court must not consider any misconduct of a spouse, except if the misconduct unreasonably causes, prolongs, or aggravates a spouse’s need for spousal support, or affects the ability of a spouse to pay spousal support.

Family violence and the division of property

The court may make an order under section 90(2) of the Family Law Act that one party have the sole and exclusive right to live in the family home. To make this order, the court must be satisfied that shared use of the family home by the spouses is a “practical impossibility” and that the spouse who is seeking to exclusively occupy the family residence is the preferred spouse on the “balance of convenience”, as set out in Bateman v. Bateman, 2013 BCSC 2026. In considering whether it is a practical impossibility for the spouses to share the residence, the court may consider evidence showing that there is significant conflict between the spouses, which may include evidence of family violence. In considering which spouse should be allowed to remain in the home, the court may consider factors such as the conduct of the parties, which may include family violence as well as the economic circumstances of the parties, whether the spouses have other accommodation options available to them, and the needs of any children involved.

Family violence is not typically considered in determining how family property and family debt should be divided between spouses on a final basis, but there are some relevant issues that family violence may impact.

The starting point for determining how family property and family debt will be divided under the Family Law Act is the presumption that the division should be equal. However, section 95 allows the court to divide family property or family debt unequally, by giving a larger share of property or debt to one of the spouses, when it would be "significantly unfair" to divide the property or debt equally. When considering whether it would be significantly unfair to divide family property and family debt equally, the court may consider factors including:

• under section 95(3), whether the objectives of spousal support have not been met through an order or agreement for spousal support to be paid, and
• under section 95(2)(i), "any other factor," as long as the other factor relates in some way to the economic characteristics of the spousal relationship, as set out in Singh v. Singh, 2020 BCCA 21.

In circumstances where financial abuse has been present and has extended to a failure to provide full and frank disclosure of a spouse’s assets and debts, the court may make an adverse inference against the party who has failed to make appropriate financial disclosure under section 213 of the Family Law Act. For example, in N.K. v. M.H., 2020 BCCA 121, the British Columbia Court of Appeal addressed property division between a husband and wife. At trial, the husband was found to have been abusive to the wife throughout the marriage, including threats, physical abuse, limiting her financial independence, and refusing her opportunities to educate herself. The wife was given 60% of the family property based on a failure of the husband to make appropriate financial disclosure, the children having a heightened need for stability in housing due to family violence, as well as the impact of family violence on the wife’s economic self-sufficiency, although that impact was largely addressed by an order for spousal support to be paid to the wife. The Court of Appeal found there was no error in dividing family property unequally based on factors including lack of financial disclosure and the effects of family violence on the children.

In He v. Guo, 2022 BCCA 355, the British Columbia Supreme Court clarified that family violence is not a relevant consideration in unequal division of family property or debt unless the violence is demonstrated to have had an economic impact on the parties.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Criminal Code

Resources

• Apply for a Family Law Act Order (Online FLA Assistant) service from Ministry of Attorney General
• Protecting yourself & your family from Legal Aid BC's Family Law website
• Family law protection orders from Legal Aid BC's Family Law website
• Seeking a Peace Bond: A Guide (booklet) from Rise Women's Legal Centre (available in 12 languages)
• How can I get an urgent protection order or have one set aside? information page from Provincial Court of British Columbia's website's
• What is a protection order? from Ministry of Attorney General's Family Justice website
• For Your Protection: Peace Bonds and Family Law Protection Orders (booklet) from Legal Aid BC
• HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers from the Department of Justice

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.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.