Difference between revisions of "Family Violence Overview"
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==Overview of the various laws around family violence== | ==Overview of the various laws around family violence== | ||
| − | This chapter | + | This chapter talks about the laws and legal mechanisms for dealing with what is legally called family violence. Other terms, such as gender-based violence, domestic violence, and intimate partner violence, are more commonly used by anti-violence organizations and may overlap substantially with family violence. |
| − | * the ''[[Family Violence and the Family Law Act|Family Law Act]]'' and its | + | |
| − | * [[Family Violence and Child Protection|child protection]] issues, | + | Because ''family violence'' is not a ''family law'' topic, this chapter covers other areas of the law, including: |
| − | * family violence in the [[Family Violence and the Criminal Code |context of Canada's ''Criminal Code'']], with information for | + | * the ''[[Family Violence and the Family Law Act|Family Law Act]]'', its definition of family violence, and mechanisms for keeping family members safe and able to work on resolving their family matters, |
| + | * the ''[[Divorce Act]]'' and its definition of family violence, and mechanisms for keeping spouses and children safe and able to work on resolving their family matters, | ||
| + | * the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]]'' RSBC 1996, c 46, (''CFCSA'') and how family violence intersects with [[Family Violence and Child Protection|child protection]] issues, | ||
| + | * family violence in the [[Family Violence and the Criminal Code |context of Canada's ''Criminal Code'']], with information for those who have experienced family violence and those accused of crimes, and | ||
* [[Suing for Family Violence in a Family Law Claim|civil claims]] and the ''law of torts'' which are designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered. | * [[Suing for Family Violence in a Family Law Claim|civil claims]] and the ''law of torts'' which are designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered. | ||
===The ''Family Law Act''=== | ===The ''Family Law Act''=== | ||
| − | + | Under the ''[[Family Law Act]]'', the term ''family violence'' includes physical, emotional, sexual, and financial abuse. This includes harmful behaviour such as threats, harassment, emotional abuse, and even acts that harm someone's financial autonomy. Women, gender diverse people, and children continue to be disproportionately impacted by family violence, in particular Indigenous women, women with disabilities, racialized women, and members of the 2SLGBTQIA+ community. | |
| − | The | + | The legal system's concept of violence has expanded beyond physical violence, reflecting the realities of how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have as much or even a greater impact than physical violence on the safety of family members, and can have a significant impact the outcome of a family law dispute. In many cases more than one of these types of violence may be present, or different types of violence may be used at different times during the relationship. However, there is no hierarchy of violence, and the presence of even one type of violent behaviour will satisfy the definition of family violence and may need to be taken into account when resolving the legal issues. |
| − | The ''Family Law Act'' defines family violence and provides | + | The ''Family Law Act'' defines family violence, and provides remedies for dealing with it, including ''family law protection orders'', requiring that courts consider family violence when assessing the ''best interests of the child'' factors to decide on parenting arrangements, and other remedies, such as conduct orders. |
| − | + | It is mandatory for family law professionals to assess the potential for family violence and take this into account when formulating their legal strategy. The ''Family Law Act'' requires all family dispute resolution professionals (lawyers, family justice counselors, mediators, etc.) to screen for family violence with their clients. Where warning signs are present, legal professionals must first determine if there are any ''safety risks'' to family members. They must also assess the degree to which family violence perpetrated by a family member might be impairing the person experiencing family violence’s ability to speak for themselves, advocate for their interests, and negotiate a fair agreement; if necessary, the legal professional should modify their strategy and advice accordingly. | |
<span style="color:#D2691E">'''Important changes'''</span> <br /> | <span style="color:#D2691E">'''Important changes'''</span> <br /> | ||
| − | The ''Family Law Act'' and | + | The ''Family Law Act'' and the ''Divorce Act'' both require the court to consider the impact of coercive and controlling behaviour and family violence when making decisions about children. |
| + | |||
| + | ===The ''Divorce Act''=== | ||
| + | The ''Divorce Act'' applies where the parties are legally married and are seeking a divorce. In 2021, the ''Divorce Act'' was updated to include new provisions on family violence. Many families may have legal issues that require them to look at the law in both the BC ''Family Law Act'' and the federal ''Divorce Act''. | ||
===Child protection=== | ===Child protection=== | ||
| − | Where children are at risk, the provincial government's ministry responsible for protecting children may become involved. The involvement of the Ministry of Children & Family Development and the authority of the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]]'' RSBC 1996, c 46, may influence your family law proceeding dramatically. This chapter takes a <span class="noglossary">brief</span> look at some child protection issues, what happens when a report is made, and when children may be placed in the care of | + | Where children are at risk, the provincial government's ministry responsible for protecting children may become involved. The involvement of the Ministry of Children & Family Development ("MCFD") and the authority of the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]]'' RSBC 1996, c 46, may influence your family law proceeding dramatically. This chapter takes a <span class="noglossary">brief</span> look at some child protection issues, what happens when a report of a protection concern is made, and when children may be placed in the care of MCFD. |
===Criminal law context=== | ===Criminal law context=== | ||
| − | Where | + | Where a family member has committed family violence, it is possible that they have also committed a criminal offence. Even where there is an existing family law case, criminal offences are prosecuted separately from family law cases in criminal court. This chapter provides an introduction to the ways that criminal law can affect cases involving family violence. |
| − | The ''Criminal Code'' provides for ''peace bonds'', | + | If a family member has assaulted or threatened another, this can lead to charges being laid under the ''Criminal Code''. While charges are being prosecuted the accused person may be ordered by a judge to have no contact with the complainant (typically called ''no contact conditions''). Other possible orders include not being allowed to have weapons or not being allowed to go to the complainant’s home. If the person is convicted of the crime, they will also receive a sentence which could include further court orders or even time in jail. The ''Criminal Code'' also provides for ''peace bonds''. Peace bonds do not result in criminal convictions and punishments, but they can be used to order an accused person not have to contact with the complainant. Peace bonds can be obtained against abusers of all kinds, including someone you dated, even if they do not meet the requirements for a protection order under the Family Law Act. |
===Civil law context=== | ===Civil law context=== | ||
| − | + | Where a family member has committed family violence, they may also have created a cause of action in civil law. A ''cause of action'' is the right to sue for something. Being wrongfully fired or hit by a car in a crosswalk can give you a cause of action. If you were assaulted by someone, including in a family relationship, you might pursue your ''cause of action'' in a lawsuit for assault or battery. | |
| − | Civil law is a broad area of law, and it includes the ''law of torts'', better known as personal injury law. | + | Civil law is a broad area of law, and it includes the ''law of torts'', better known as personal injury law. The law of torts can address physical assaults, but also covers a wide range of harmful actions including privacy violations and damage to property. The result of a successful ''tort claim'' is typically financial compensation. |
| − | + | This chapter takes a brief look at how tort claims related to family violence can be brought with or alongside a regular family law case. This chapter also reviews some of the common challenges in tort cases. | |
==Resources and links== | ==Resources and links== | ||
| Line 52: | Line 58: | ||
* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
| + | * ''[[Divorce Act]]'' | ||
* ''[http://canlii.ca/t/7vf2 Criminal Code]'' | * ''[http://canlii.ca/t/7vf2 Criminal Code]'' | ||
* [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules] | * [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules] | ||
| Line 73: | Line 80: | ||
*[https://clicklaw.bc.ca/resource/4642 Legal Aid BC's Family Law website's information page "Child protection"] | *[https://clicklaw.bc.ca/resource/4642 Legal Aid BC's Family Law website's information page "Child protection"] | ||
| − | {{REVIEWED | reviewer = [[ | + | {{REVIEWED | reviewer = [[RISE Women's Legal Clinic]], June 16, 2023}} |
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
Revision as of 00:19, 23 June 2023
Contents
If you are in danger
If your physical safety is in immediate danger, start here first:
- If you are in immediate danger, call 911.
- For crisis support, dial VictimLINK at 1-800-563-0808 for confidential and multilingual service.
- For more information, visit the Clicklaw website (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety."
This chapter describes the laws around family violence, and some avenues for protecting yourself and/or your children.
Overview of the various laws around family violence
This chapter talks about the laws and legal mechanisms for dealing with what is legally called family violence. Other terms, such as gender-based violence, domestic violence, and intimate partner violence, are more commonly used by anti-violence organizations and may overlap substantially with family violence.
Because family violence is not a family law topic, this chapter covers other areas of the law, including:
- the Family Law Act, its definition of family violence, and mechanisms for keeping family members safe and able to work on resolving their family matters,
- the Divorce Act and its definition of family violence, and mechanisms for keeping spouses and children safe and able to work on resolving their family matters,
- the Child, Family and Community Service Act] RSBC 1996, c 46, (CFCSA) and how family violence intersects with child protection issues,
- family violence in the context of Canada's Criminal Code, with information for those who have experienced family violence and those accused of crimes, and
- civil claims and the law of torts which are designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.
The Family Law Act
Under the Family Law Act, the term family violence includes physical, emotional, sexual, and financial abuse. This includes harmful behaviour such as threats, harassment, emotional abuse, and even acts that harm someone's financial autonomy. Women, gender diverse people, and children continue to be disproportionately impacted by family violence, in particular Indigenous women, women with disabilities, racialized women, and members of the 2SLGBTQIA+ community.
The legal system's concept of violence has expanded beyond physical violence, reflecting the realities of how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have as much or even a greater impact than physical violence on the safety of family members, and can have a significant impact the outcome of a family law dispute. In many cases more than one of these types of violence may be present, or different types of violence may be used at different times during the relationship. However, there is no hierarchy of violence, and the presence of even one type of violent behaviour will satisfy the definition of family violence and may need to be taken into account when resolving the legal issues.
The Family Law Act defines family violence, and provides remedies for dealing with it, including family law protection orders, requiring that courts consider family violence when assessing the best interests of the child factors to decide on parenting arrangements, and other remedies, such as conduct orders.
It is mandatory for family law professionals to assess the potential for family violence and take this into account when formulating their legal strategy. The Family Law Act requires all family dispute resolution professionals (lawyers, family justice counselors, mediators, etc.) to screen for family violence with their clients. Where warning signs are present, legal professionals must first determine if there are any safety risks to family members. They must also assess the degree to which family violence perpetrated by a family member might be impairing the person experiencing family violence’s ability to speak for themselves, advocate for their interests, and negotiate a fair agreement; if necessary, the legal professional should modify their strategy and advice accordingly.
Important changes
The Family Law Act and the Divorce Act both require the court to consider the impact of coercive and controlling behaviour and family violence when making decisions about children.
The Divorce Act
The Divorce Act applies where the parties are legally married and are seeking a divorce. In 2021, the Divorce Act was updated to include new provisions on family violence. Many families may have legal issues that require them to look at the law in both the BC Family Law Act and the federal Divorce Act.
Child protection
Where children are at risk, the provincial government's ministry responsible for protecting children may become involved. The involvement of the Ministry of Children & Family Development ("MCFD") and the authority of the Child, Family and Community Service Act] RSBC 1996, c 46, may influence your family law proceeding dramatically. This chapter takes a brief look at some child protection issues, what happens when a report of a protection concern is made, and when children may be placed in the care of MCFD.
Criminal law context
Where a family member has committed family violence, it is possible that they have also committed a criminal offence. Even where there is an existing family law case, criminal offences are prosecuted separately from family law cases in criminal court. This chapter provides an introduction to the ways that criminal law can affect cases involving family violence.
If a family member has assaulted or threatened another, this can lead to charges being laid under the Criminal Code. While charges are being prosecuted the accused person may be ordered by a judge to have no contact with the complainant (typically called no contact conditions). Other possible orders include not being allowed to have weapons or not being allowed to go to the complainant’s home. If the person is convicted of the crime, they will also receive a sentence which could include further court orders or even time in jail. The Criminal Code also provides for peace bonds. Peace bonds do not result in criminal convictions and punishments, but they can be used to order an accused person not have to contact with the complainant. Peace bonds can be obtained against abusers of all kinds, including someone you dated, even if they do not meet the requirements for a protection order under the Family Law Act.
Civil law context
Where a family member has committed family violence, they may also have created a cause of action in civil law. A cause of action is the right to sue for something. Being wrongfully fired or hit by a car in a crosswalk can give you a cause of action. If you were assaulted by someone, including in a family relationship, you might pursue your cause of action in a lawsuit for assault or battery.
Civil law is a broad area of law, and it includes the law of torts, better known as personal injury law. The law of torts can address physical assaults, but also covers a wide range of harmful actions including privacy violations and damage to property. The result of a successful tort claim is typically financial compensation.
This chapter takes a brief look at how tort claims related to family violence can be brought with or alongside a regular family law case. This chapter also reviews some of the common challenges in tort cases.
Resources and links
Legislation
- Family Law Act
- Divorce Act
- Criminal Code
- Provincial Court (Child, Family and Community Service Act) Rules
- Negligence Act
- Controlled Drugs and Substances Act
- Youth Criminal Justice Act
- Limitation Act
Resources
- E-book by Dr. Linda C. Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (CanLII February 2017, updated March 2020)
- VictimLINK crisis support line: 1-800-563-0808
- Battered Women's Support Service crisis support line: 1-855-687-1868
Links
- Dial-A-Law Script "Peace Bonds and Assault Charges"
- Ministry of Attorney General's Community Safety and Crime Prevention Branch and Legal Aid BC's booklet For Your Protection: Peace Bonds and Family Law Protection Orders
- Clicklaw resources on abuse and family violence
- Clicklaw resources on child protection
- Legal Aid BC's publications on abuse and family violence
- Legal Aid BC's Family Law website's information page "Child protection"
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by RISE Women's Legal Clinic, June 16, 2023. |
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 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.
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