20
edits
Difference between revisions of "Family Violence"
Jump to navigation
Jump to search
no edit summary
| Line 22: | Line 22: | ||
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></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 case law has determined that a broad range of actions constitute “family violence”. The following examples are just some of the behaviors that the court has determined constitute family violence: | |||
a) In 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. | |||
b) In Hokhold v. Gerbrandt, 2014 BCSC 1874, 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. | |||
c) In R. (C.) v. (M.A.), 2015 BCPC, 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. | |||
d) In 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. | |||
e) 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. | |||
It is important to remember that just because you make an argument that something is “family violence” does not necessarily mean that a court will agree with you; a lot will depend on the specific facts of your case. The following are some examples of where the court determined that there was no family violence presence: | |||
a) In 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. | |||
b) In E. (J.R.) v. 07----8 B.C. Ltd., 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. | |||
Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence. | Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence. | ||
| Line 277: | Line 291: | ||
<blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) if necessary for the purpose of paragraph (a), use reasonable force.</tt></blockquote></blockquote> | ||
The Potential Impact of a finding of Family Violence on Parenting Arrangements | |||
A finding by a court that family violence has occurred could impact on a court’s decision on what parenting arrangements and what allocation of parental responsibilities are in the best interests of a child. For example, a court could determine that the perpetrator of family violence should have no parenting time, supervised parenting time, or that all of the parental responsibilities go to the survivor of family violence. However, there have been other cases where having concluded that family violence has occurred, the court still determined that sharing parenting time equally between the parents is in the child’s best interests. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific. | |||
However, according to s. 37 of the ''[[Family Law Act]]'', in the best interests analysis, a court must consider, amongst other things the following: | |||
a) The impact of any family violence on the child’s safety, security or well-being; | |||
b) Whether the family violence is directed toward the child or another family member; | |||
c) 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; | |||
d) The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child; and | |||
e) Any civil or criminal proceeding relevant to the child’s safety, security or wellbeing. | |||
As such, if you are asking a court to make an order respecting guardianship, parenting arrangements or contact with a child and there has been family violence, or if you are defending such an application, it is important to present evidence that addresses these factors. | |||
===Conduct orders=== | ===Conduct orders=== | ||
| Line 442: | Line 466: | ||
{{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], | {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], November 15, 2016}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||