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Difference between revisions of "Family Violence in the Family Law Act and the Divorce Act"
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Family Violence in the Family Law Act and the Divorce Act (view source)
Revision as of 18:49, 19 July 2019
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* In ''[http://canlii.ca/t/g1rsc 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. | * In ''[http://canlii.ca/t/g1rsc 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. | ||
It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp S. | It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said: | ||
<blockquote>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. </blockquote> | <blockquote>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. </blockquote> | ||
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===Protection orders under Part 9=== | ===Protection orders under Part 9=== | ||
Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under | Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under section 183(1), an ''at-risk family member'', someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act. | ||
The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: | The act has a number of really important definitions that relate to protection orders. ''At-risk family member'' and ''family member'' are defined in ss. 182 and 1, respectively: | ||
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===Making protection orders=== | ===Making protection orders=== | ||
When the court is asked to make a protection order, it must consider certain risk factors set out at | When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1): | ||
<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote> | <blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote> | ||
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<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote> | <blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote> | ||
Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under | Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under section 185, the court must also consider: | ||
*whether the child might be exposed to family violence if a protection order isn't made, and | *whether the child might be exposed to family violence if a protection order isn't made, and | ||
*whether a protection order should also be made for the protection of the child. | *whether a protection order should also be made for the protection of the child. | ||
Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the | Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Even one act of physical violence may suggest that violence is ''likely'' to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the section 184 risk factors to allow the court to decide if it should grant a protection order ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184. | ||
===Protection order terms=== | ===Protection order terms=== | ||
The available protection orders are listed at | The available protection orders are listed at section 183(3) and 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, and stalking the at-risk family member, | *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, and stalking the at-risk family member, | ||
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*requiring the person to report to the court or to another person. | *requiring the person to report to the court or to another person. | ||
Under | Under section 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term. | ||
If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended. | If a protection order, an order from another jurisdiction that is like a protection order, or a ''Criminal Code'' no-contact or no-communication order is made, any previous ''Family Law Act'' orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended. | ||
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===Enforcing protection orders=== | ===Enforcing protection orders=== | ||
Protection orders can't be enforced under the ''Family Law Act'', only by | Protection orders can't be enforced under the ''Family Law Act'', only by section 127 of the ''Criminal Code'', which makes it an offence to breach a court order. However, section 188(2) says this: | ||
<blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote> | <blockquote><tt>A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may</tt></blockquote> | ||
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==Family violence and the best interests of the child analysis== | ==Family violence and the best interests of the child analysis== | ||
Part 4, Division 1 of the ''Act'' (s. 37 and | Part 4, Division 1 of the ''Act'' (s. 37 and section 38) deal with the factors that determine what's in the ''best interests of the child''. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements, or contact with a child. | ||
A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities. | A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities. | ||
This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. 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. | This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. 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. | ||
According to | According to section 37 of the ''[[Family Law Act]]'', when undertaking the best interests analysis, a court must consider, among other things, the following: | ||
* the impact of any family violence on the child’s safety, security, or well-being, | * 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, | * whether the family violence is directed toward the child or another family member, | ||
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Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other. | Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with each other. | ||
A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under | A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under section 255, a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place. | ||
A court can only make conduct orders for one of four purposes set out at | A court can only make conduct orders for one of four purposes set out at section 222: | ||
<blockquote><tt>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:</tt></blockquote> | <blockquote><tt>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:</tt></blockquote> | ||
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*requiring a person to report to the court to another person, like a counsellor or therapist. | *requiring a person to report to the court to another person, like a counsellor or therapist. | ||
Conduct orders can be enforced in a number of ways under | Conduct orders can be enforced in a number of ways under section 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order. | ||
==Other orders== | ==Other orders== | ||
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Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence. | Other orders are available under the ''Family Law Act'' that could be used to address issues relating to family violence. | ||
*'''Exclusive occupancy:''' Under | *'''Exclusive occupancy:''' Under section 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there. | ||
*'''Supervised parenting time and contact:''' Under ss. 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. | *'''Supervised parenting time and contact:''' Under ss. 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 | *'''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 restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol. | ||
==Resources and Links== | ==Resources and Links== | ||