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Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends; it may also mean that a family law court proceeding will include a claim for damages as a result of the violence. | Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends; it may also mean that a family law court proceeding will include a claim for damages as a result of the violence. | ||
This page provides an introduction to the differences between criminal law and tort law, and 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 brief look at some child protection issues. | This page provides an introduction to the differences between criminal law and tort law, and 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 brief look at some child protection issues. | ||
==Introduction== | ==Introduction== | ||
Two of the most important branches of the law are ''civil law'' and ''criminal law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. ''Tort law'' is a branch of civil law, as is family law. Other branches of civil law include contract law, property law and the law on negligence. Criminal law mostly deals with regulatory legislation, laws created by the government which list the things we're not supposed to do and the range of potential penalties for doing those things. Legislation that falls under this heading includes the ''Criminal Code'', the ''Controlled Drugs and Substances Act'' and the ''Youth Criminal Justice Act''. | Two of the most important branches of the law are ''civil law'' and ''criminal law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones. ''Tort law'' is a branch of civil law, as is family law. Other branches of civil law include contract law, property law and the law on negligence. Criminal law mostly deals with regulatory legislation, laws created by the government which list the things we're not supposed to do and the range of potential penalties for doing those things. Legislation that falls under this heading includes the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]'' and the ''[http://canlii.ca/t/7vx2 Youth Criminal Justice Act]''. | ||
Criminal law deals with a person's offences against the rules of the state. Tort law, on the other hand, 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 some one 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 rape are set out in ''Criminal Code'', they're creatures of the common law, the law that the courts have created. | Criminal law deals with a person's offences against the rules of the state. Tort law, on the other hand, 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 some one 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 rape are set out in ''Criminal Code'', they're creatures of the common law, the law that the courts have created. | ||
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Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the the criminal law (his alleged crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (his 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. If you are punched by someone, for example, that person's conduct may result in both: | Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the the criminal law (his alleged crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (his 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. If you are punched by someone, for example, that person's conduct may result in both: | ||
#a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else | #a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and | ||
#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 . | #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 . | ||
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The ''Criminal Code'' is the federal law that sets out the bulk of the criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including: | The ''Criminal Code'' is the federal law that sets out the bulk of the criminal law. The ''Criminal Code'' does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including: | ||
*common assault, | |||
*assault causing bodily harm, | |||
*aggravated assault, | |||
*sexual assault, | |||
*attempted murder, | |||
*stalking (criminal harassment), | |||
*making threats (uttering threats), | |||
*keeping someone against their will (unlawful confinement), and | |||
*kidnapping. | |||
In order for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event. | In order for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event. | ||
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After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a ''Report to Crown Counsel'' which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges; if the crown reviewing the police file thinks there is there is enough evidence, the crown will approve the charges and the matter will be set for a hearing before a Judge. | After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a ''Report to Crown Counsel'' which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges; if the crown reviewing the police file thinks there is there is enough evidence, the crown will approve the charges and the matter will be set for a hearing before a Judge. | ||
===Information for | ===Information for complainants=== | ||
If you have suffered family violence, call the police; nothing will happen until you do. When the police attend, they will, in all likelihood, take the abuser into custody, and he or she will stay there until a judge is able to speak to him or her. Most of the time, the he or she will be released from custody until his or her trial date following this brief hearing, and the release will be on specific terms and conditions set out in a document called a ''Recognizance'' or an ''Undertaking''. | If you have suffered family violence, call the police; nothing will happen until you do. When the police attend, they will, in all likelihood, take the abuser into custody, and he or she will stay there until a judge is able to speak to him or her. Most of the time, the he or she will be released from custody until his or her trial date following this brief hearing, and the release will be on specific terms and conditions set out in a document called a ''Recognizance'' or an ''Undertaking''. | ||
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You should tell the police — and perhaps crown counsel — about all of your concerns with the abuser, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether the abuser has ever been arrested for similar problems in the past. You will want your concerns addressed in the Recognizance on which your partner will be released from custody. Among other things, the court can require that the abuser: | You should tell the police — and perhaps crown counsel — about all of your concerns with the abuser, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether the abuser has ever been arrested for similar problems in the past. You will want your concerns addressed in the Recognizance on which your partner will be released from custody. Among other things, the court can require that the abuser: | ||
*not go to your home, school or workplace, | |||
*not go to your children's school or daycare, | |||
*not come within a certain distance of your home, | |||
*not contact you or the children, directly or indirectly, and | |||
*fulfil any other condition that may be necessary for the safety of you and your children. | |||
Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the Recognizance the abuser is released on. | Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the Recognizance the abuser is released on. | ||
====Breaching the | ====Breaching the recognizance==== | ||
If the abuser doesn't follow the terms of his or her Recognizance, call the police. They won't be aware that there's a further problem unless you let them know. | If the abuser doesn't follow the terms of his or her Recognizance, call the police. They won't be aware that there's a further problem unless you let them know. | ||
====Counselling | ====Counselling resources and safe houses==== | ||
Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with. | Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with. | ||
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If you want to get back together with your spouse, contact him or her, or stop the criminal process, you must speak to crown counsel. You cannot change the terms of your spouse's Recognizance or drop the charges yourself, only crown counsel can do that. Further, if you do initiate contact with your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the Recognizance which might result in further criminal charges against your spouse. | If you want to get back together with your spouse, contact him or her, or stop the criminal process, you must speak to crown counsel. You cannot change the terms of your spouse's Recognizance or drop the charges yourself, only crown counsel can do that. Further, if you do initiate contact with your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the Recognizance which might result in further criminal charges against your spouse. | ||
===Information for | ===Information for accused persons=== | ||
There is a standing policy of the provincial Attorney General that incidents of spousal assault are to be treated as significant crimes. As a result, if your spouse accuses you of assault, this policy requires that you be arrested and taken into custody. You will be taken to jail overnight more likely than not. | There is a standing policy of the provincial Attorney General that incidents of spousal assault are to be treated as significant crimes. As a result, if your spouse accuses you of assault, this policy requires that you be arrested and taken into custody. You will be taken to jail overnight more likely than not. | ||
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On the next court date, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and will spend the time until the hearing of the charges against you in jail. Typically, these conditions are: | On the next court date, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and will spend the time until the hearing of the charges against you in jail. Typically, these conditions are: | ||
*not to have contact with your spouse, either directly or indirectly, | |||
*not to go to your spouse's home, school or workplace, and | |||
*to keep the peace and be of good behaviour. | |||
Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth. | Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth. | ||
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The conditions which the judge requires will be written down in a document called a ''Recognizance'' or an ''Undertaking''. It is critical that you follow the terms set out in your Recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your Recognizance will remain in effect until the trial or until they are changed at a hearing before trial. | The conditions which the judge requires will be written down in a document called a ''Recognizance'' or an ''Undertaking''. It is critical that you follow the terms set out in your Recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your Recognizance will remain in effect until the trial or until they are changed at a hearing before trial. | ||
====Lawyers and your | ====Lawyers and your bail hearing==== | ||
You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children. | You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children. | ||
Whether you're able to get one or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the Legal Services Society to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing, however if the number of people stuck in cells is high, you may not have that much time with him or her. | Whether you're able to get one or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the [http://www.lss.bc.ca Legal Services Society] to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing, however if the number of people stuck in cells is high, you may not have that much time with him or her. | ||
The point of all this is that you will doubtless want to ensure that the terms of your Recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work. | The point of all this is that you will doubtless want to ensure that the terms of your Recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work. | ||
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*'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your Recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the Recognizance before those terms will be officially changed. | *'''Reconciliation:''' If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your Recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the Recognizance before those terms will be officially changed. | ||
===The | ===The consequences of criminal charges=== | ||
Among other things, criminal charges relating to family violence can lead to: | Among other things, criminal charges relating to family violence can lead to: | ||
*a ''stay of proceedings'', when the crown doesn't take the charges to trial and no criminal conviction is entered, | |||
*a ''discharge'' following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record), | |||
*a ''suspended sentence'', with conditions, a period of probation and a criminal conviction, | |||
*a ''peace bond'' under s. 810 of the ''Criminal Code'', under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or | |||
*a conviction punished by a fine, jail time, or both a fine and time in jail. | |||
The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence. | The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence. | ||
==Tort | ==Tort law== | ||
Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims. | Unlike criminal matters where the crown handles everything, a claim in tort must be advanced and prosecuted by the person who has suffered the family violence. In family law proceedings, tort claims are usually included with the other relief asked for in the Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements and so forth. Tort claims can only be heard by the Supreme Court; the Provincial Court does not have the jurisdiction to deal with tort claims. | ||
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Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things: | Also unlike criminal matters, the remedies that can be sought aren't ''protective'', in the sense of no-contact and no-go orders, or ''punitive'', in the sense of jail time, criminal records and fines. The remedy the person who has suffered the family violence seeks is primarily ''restorative'': he or she would be asking for an award of ''damages'' to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things: | ||
*pain and suffering resulting from the violence, | |||
*loss of enjoyment of life as a result of the impact of the violence, | |||
*past wages lost because of the violence, | |||
*future wages lost because of some inability, illness or other impairment resulting from the violence, | |||
*rehabilitation and job retraining costs, and | |||
*past and future medical care expenses related to the injuries suffered from the violence. | |||
Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish the abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature". | Damages can also be claimed as ''punitive damages'' or ''aggravated damages'', both of which are in fact intended to punish the abuser for his or her conduct rather than to compensate the person who has suffered the family violence for his or her losses. Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature". | ||
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The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. | The most common tort claim in situations of family violence is a claim based on ''assault and battery''. ''Assault'' technically means wrongfully threatening to harm someone; ''battery'' means wrongfully attacking and harming someone. | ||
===The | ===The drawbacks of tort claims=== | ||
This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. | This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. | ||
Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''Family Law Act'' or the ''Negligence Act'', it's mostly based on the common law, as a result of which it can be terribly complex to present your case. Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practice family law do not work on a contingency basis where they get paid out of the client's award, they charge by the hour. | Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your spouse. The law governing tort claims is not set out in a statute, like the ''[[Family Law Act]]'' or the ''[http://canlii.ca/t/8487 Negligence Act]'', it's mostly based on the common law, as a result of which it can be terribly complex to present your case. Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're successful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Lawyers who practice family law do not work on a contingency basis where they get paid out of the client's award, they charge by the hour. | ||
Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''. | Secondly, even if you're successful, your spouse must have some money or other assets from which he or she can pay your damages if you win. It's no good to spend tens of thousands of dollars on legal fees and win only to find that your spouse has no way to pay your award. This is called a ''dry judgment''. | ||
On this last point, however, I should mention the 1997 Supreme Court case of ''Megeval v. Megeval''. In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties, however the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated. | On this last point, however, I should mention the 1997 BC Supreme Court case of ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC). In this case, the effect of the court's judgment in the family law part of the case was to divide the family assets equally between the parties, however the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated. | ||
Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for the obvious reasons. | Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for the obvious reasons. | ||
===Limitation | ===Limitation periods=== | ||
A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. | A ''limitation period'' is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. | ||
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*There is no limitation period to claims based on sexual assault, according to s. 3(4)(k)(i) of the provincial ''Limitation Act''. | *There is no limitation period to claims based on sexual assault, according to s. 3(4)(k)(i) of the provincial ''Limitation Act''. | ||
*The limitation period doesn't begin to run until the last incident of violence. | *The limitation period doesn't begin to run until the last incident of violence. | ||
*Because of the 1992 Supreme Court of Canada decision in ''K.M. v. H.M.'', the limitation period may not begin to run until the person who suffered the family violence makes the connection between the violence and the harm he or she has suffered. | *Because of the 1992 Supreme Court of Canada decision in ''[http://canlii.ca/t/1fs89 K.M. v. H.M.]'', [1992] 3 S.C.R. 6, the limitation period may not begin to run until the person who suffered the family violence makes the connection between the violence and the harm he or she has suffered. | ||
===Awards=== | ===Awards=== | ||
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*''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages. | *''Bain v. Boulaine'', 1996: Sex without consent, $7,000 for pain and suffering, plus $4,000 in punitive damages. | ||
*''Bellsmith v. Bellsmith'', 1996: Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss. | *''[http://canlii.ca/t/1f1r7 Bellsmith v. Bellsmith]'', 1996 CanLII 448 (BCSC): Multiple assaults, $13,000 for pain and suffering, plus $2,000 in punitive damages and $19,000 for wage loss. | ||
*''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering. | *''C. v. M.'', 1990: Assault and sex without consent, $40,000 for pain and suffering. | ||
*''Glendale v. Drozdzik'', 1993: Date rape, $25,000 for pain and suffering plus $10,000 in wage loss. | *''[http://canlii.ca/t/231pn Glendale v. Drozdzik]'', 1993 CanLII 6867 (BCCA): Date rape, $25,000 for pain and suffering plus $10,000 in wage loss. | ||
*''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500. | *''Gould v. Sandau'', 2003: Assault causing broken bone in hand, $2,500. | ||
*''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages. | *''Harder v. Brown'', 1989: Repeated sexual assaults, $40,000 in general and aggravated damages, plus $10,000 in punitive damages. | ||
*''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages. | *''Hurley v. Moore'', 1990: Severe assault resulting in scarring, $3,000 for pain and suffering, $2,000 for the scarring, plus $20,000 in general damages. | ||
*''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages. | *''Kooner v. Kooner'', 1989: Two assaults, $5,000 in general damages plus $2,500 in aggravated damages. | ||
*''Kovacic v. Kovacic'', 1998: Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages. | *''[http://canlii.ca/t/1f6w9 Kovacic v. Kovacic]'', 1998 CanLII 1083 (BCSC): Assault, $2,000 for pain and suffering plus $1,000 for aggravated damages. | ||
*''Megeval v. Megeval'', 1997: Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages. | *''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages. | ||
*''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering. | *''Twardowski v. Twardowski'', 1994: Multiple assaults without lasting physical damage, $8,500 for pain and suffering. | ||
*''White v. White'', 2003: Multiple assaults, $10,000 in damages. | *''White v. White'', 2003: Multiple assaults, $10,000 in damages. | ||
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The provincial ''Family Law Act'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal Recognizance does, discussed above. | The provincial ''Family Law Act'' offers a number of different restraining orders that can be very helpful and can provide the same kind of protection as a criminal Recognizance does, discussed above. | ||
===Protection | ===Protection orders=== | ||
Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 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. | Protection orders are the primary way family violence is addressed under the ''Family Law Act''. Under s. 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. | ||
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<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> | ||
====Making | ====Making protection orders==== | ||
When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1): | When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1): | ||
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#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. | ||
====Protection | ====Protection orders==== | ||
The available protection orders are listed at s. 183(3) and include orders: | The available protection orders are listed at s. 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, | |||
*limiting how the person communicates with the at-risk family member, | |||
*directing the police to remove the person from the family home or accompany him or her to remove personal property, and | |||
*requiring the person to report to the court or to another person. | |||
Under s. 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. | Under s. 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. | ||
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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. 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. 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. | ||
====Changing | ====Changing protection orders==== | ||
When a protection order has been made and hasn't yet expired, either party can apply to vary the order to: | 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 order is in effect | #extend or shorten the period of time that the order is in effect, | ||
#vary the terms of the order | #vary the terms of the order, or | ||
#end the order. | #end the order. | ||
When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order. | When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order. | ||
====Enforcing | ====Enforcing protection orders==== | ||
Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'' which makes it an offence to breach of a court order. However, s. 188(2) says this; | Protection orders can't be enforced under the ''Family Law Act'', only by s. 127 of the ''Criminal Code'' which makes it an offence to breach of a court order. However, s. 188(2) says this; | ||
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<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> | ||
===Conduct | ===Conduct orders=== | ||
The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''Family Law Act''. Conduct orders may only be made for one of four purposes set out at s. 222: | The court can make a variety of special orders, called ''conduct orders'', under Division 5 of Part 10 of the ''Family Law Act''. Conduct orders may only be made for one of four purposes set out at s. 222: | ||
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Conduct orders include orders: | Conduct orders include orders: | ||
*requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course, | |||
*restricting communication between the parties, | |||
*requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities, | |||
*restricting a person from terminating the utilities serving the family home, | |||
*requiring a person to supervise the removal of personal property from the family home, | |||
*requiring a person to post security to guarantee his or her good behaviour, and | |||
*requiring a person to report to the court to to another person, like a counsellor or therapist. | |||
Conduct order can be enforced in a number of ways, 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. | Conduct order can be enforced in a number of ways, 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 | ===Other orders=== | ||
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. | ||
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*'''Conditions of parenting time and contact:''' Under s. 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 might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol. | *'''Conditions of parenting time and contact:''' Under s. 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 might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol. | ||
==Child | ==Child protection issues== | ||
The provincial Ministry for Children and Family Development is authorized to protect children from neglect and harm under the provincial ''Child, Family and Community Service Act''. Section 2 of the act sets out the guiding principles of the legislation: | The provincial Ministry for Children and Family Development is authorized to protect children from neglect and harm under the provincial ''Child, Family and Community Service Act''. Section 2 of the act sets out the guiding principles of the legislation: | ||
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Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the Child, Family and Community Service Act are the ''safety and wellbeing'' of the children. | Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the Child, Family and Community Service Act are the ''safety and wellbeing'' of the children. | ||
===Reporting | ===Reporting children to the ministry=== | ||
Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the Ministry for Children and Family Development. | Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development]. | ||
Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint. | Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint. | ||
===The | ===The consequences of a report=== | ||
If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include: | If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include: | ||
*providing support services to the family in the home, including referrals to outside social agencies, | |||
*supervising the child's care in the home, including random unannounced visits by the worker, or | |||
*removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home. | |||
Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort. | Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort. | ||
====Information for | ====Information for reported parents==== | ||
Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded. | Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded. | ||
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The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to to ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to co-operate with you in raising your child. | The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to to ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to co-operate with you in raising your child. | ||
====Information for | ====Information for parents making a report==== | ||
Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this. | Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this. | ||
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Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment. | Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment. | ||
===What | ===What happens if a problem is found=== | ||
If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to co-operate with the ministry, the ministry may begin court proceedings. If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the Provincial Court (Child, Family and Community Service Act) Rules. | If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to co-operate with the ministry, the ministry may begin court proceedings. If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]. | ||
====When | ====When your child is not removed==== | ||
Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief: | Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief: | ||
*the on-going supervision of the child, | |||
*the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home, | |||
*prohibiting a person from contacting and interfering with the child, | |||
*prohibiting a person from living with the child or entering the child's home, | |||
*a term requiring the police to enforce the order, and | |||
*the removal of the child if the parent fails to comply with the terms of a supervision order. | |||
The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application. | The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application. | ||
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You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended. | You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended. | ||
====When | ====When your child is removed==== | ||
If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within 7 days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position. | If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within 7 days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position. | ||
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At the presentation hearing, the court may make interim orders for the following relief : | At the presentation hearing, the court may make interim orders for the following relief : | ||
*that the ministry have custody of your child, | |||
*that the child be returned to you under the supervision of the ministry, | |||
*that the child be returned to you, and | |||
*that the child be placed in the care of someone other than yourself. | |||
It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight. | It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight. | ||
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At the protection hearing, the court may make orders for the following relief: | At the protection hearing, the court may make orders for the following relief: | ||
*that the child be returned to you under the supervision of the ministry for a period of up to 6 months, | |||
*that the child be placed in someone else's custody for a specific period of time, | |||
*that the child be placed in the custody of the ministry for a specific period of time, or | |||
*that the child continue to be in the custody of the ministry. | |||
Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended. | Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended. | ||