Difference between pages "Penalties, Violations, and Offences with Employment Insurance (8:VIII)" and "Family Violence (3:VIII)"

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{{REVIEWED LSLAP | date= July, 2019}}
{{REVIEWED LSLAP | date= August 12, 2021}}
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{{LSLAP Manual TOC|expanded = family}}


== A. Imposing Penalties ==


Sections 38 and 40 of the ''EI Act'' allow the Commission to impose a penalty of up to three times the weekly rate of benefit on a claimant who '''knowingly''' makes a false or misleading representation to the Commission in relation to his or her claim for benefits. The claimant must actually know that the statement is false or misleading, and the onus of proving this is on the Commission. 
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The court applies a subjective knowledge test to decide whether the claimant intended to make false statements to the commission. Following ''Canada v Gates'' (1995), 125 D.L.R. (4th) 348, the Court in ''David Moretto v AG Canada'', [1998]  F.C.J. No. 438, confirmed that even if a claimant’s statement is found to be false, no penalty should be levied unless the finder of fact is  satisfied that the claimant “subjectively knew” the statement was false. It is not enough to say that they should have known, or should have asked someone, or that a reasonable person would have known.
== A. Family Law Act ==


== B. Types of Penalties ==
Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.


Types of penalties include warning letters, penalties, monetary penalties, prosecutions, and violations (discussed below). Most often, the Commission chooses to issue a monetary penalty (a fine). For relatively minor cases, they may issue a warning letter.  
Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.  


Alternatively, a claimant could be prosecuted criminally (summarily). Section 135(3) of the ''EI Act'' sets the minimum fine at $200 for fraud  relating to a person’s employment and Record of Employment. The maximum fine is $5,000 and where appropriate, twice the amount of benefits falsely obtained, or the fine plus imprisonment for a term of up to six months (s 135(3)). In practice, criminal court cases are very rare,  even when a claimant asks to be prosecuted. The Commission need only write a decision letter to the claimant to impose a very large penalty, which is much simpler than proceeding with a court case, and the standard of proof is much higher in a criminal court than for the Commission
There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection


=== 1. Appealing a Decision to Impose a Penalty ===
Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).  


If the Commission imposes a '''penalty under s 38''' (or s 39 in the case of employers), '''a client should be advised to appeal''' in all but the clearest of circumstances. Regardless of what the Commission says, it has the burden of proving that the claimant knew that the statement was false or misleading at the time it was made. If the claimant has a reasonable explanation (e.g. confusion regarding the intent of the question), the appeal should be allowed.
Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.  


:'''NOTE:''' The Commission cannot impose a penalty under ss 38 or 39 if 36 months have elapsed since the act or omission. For a case that discusses when time limits start to run see ''Attorney General of Canada v Kos'', 2005 FCA 319. The key issue here was whether file notes by an  insurance officer constituted a “decision” that triggered the time limit. The court ruled that it did not, in part because the notes were not communicated to the claimant.
== A. Divorce Act ==


=== 2. Appealing the Amount of a Penalty ===
Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes.


The SST has jurisdiction over the amount of the penalty assigned. While the amount of the penalty can also be appealed, a penalty cannot be  reduced simply because the SST considers it a bit too high. However, they can reduce a penalty if the decision is unreasonable, e.g. where  Commission has erred by ignoring relevant circumstances such as the claimant's ability to pay, or health problems, or where it took irrelevant circumstances into account. It is not necessary to prove that the Commission was unfair, just that it was not made aware ofall the relevant circumstances.
Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse.


== C. The Violation System ==
Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA).
 
Section 7.1 of the ''EI Act'' outlines the increased qualifying requirements for claimants who are found to have committed fraud after June  30, 1996. These requirements increase depending on how the violation is classified (minor, serious, or very serious). If the Commission  chooses to simply issue a warning letter (possibly accompanied by a fine), then as per s 7.1(5), no such classification is made.
 
=== 1. Increased Number of Hours Required to Qualify ===
 
Section 7.1(1) provides that an insured claimant (other than a new or re-entrant) must have a greater number of hours to qualify if that person has accumulated one or more violations in the 260 weeks before making their claim. This adds a significant barrier for receiving benefits. The increased hours required to qualify after a violation are outlined in the '''s 7.1(1) Table''', on the following page:
 
'''Section 7.1(1) Table'''
 
{| class="wikitable"
! Regional Rate Of Unemployment
! colspan="4" | Violation Severity
|-
|
| '''Minor'''
| '''Serious'''
| '''Very Serious'''
| '''Subsequent'''
|-
| '''6.0% and under'''
| 875
| 1050
| 1225
| 1400
|-
| '''over 6.0% to 7.0%'''
| 831
| 998
| 1164
| 1330
|-
| '''over 7.0% to 8.0%'''
| 788
| 945
| 103
| 1260
|-
| '''over 8.0% to 9.0%'''
| 744
| 893
| 1041
| 1190
|-
| '''over 9.0% to 10.0%'''
| 700
| 840
| 980
| 1120
|-
| '''over 10.0% to 11.0%'''
| 656
| 788
| 919
| 1050
|-
| '''over 11.0% to 12.0%'''
| 613
| 735
| 858
| 980
|-
| '''over 12.0% to 13.0%'''
| 569
| 683
| 796
| 910
|-
| '''over 13.0%'''
| 525
| 630
| 735
| 840
|}
 
:'''NOTE:''' Violations should always be appealed.
 
=== 2. Issuing Violations ===
 
Pursuant to s 7.1(4), the Commission may issue a violation notice for:
 
*a) one or more penalties imposed under ss 38, 39, 41.1 or 65.1 as a result of acts or omissions mentioned in ss 38, 39 or 65.1;
*b) a finding of guilt for an offence under ss 135 or 136; or
*c) a finding of guilt of one or more offences under the ''Criminal Code'' as a result of acts or omissions relating to the application of the ''EI Act''.
 
=== 3. Classifying Violations ===
 
If a violation is found to have occurred, as determined by the above criteria, it must be classified for purposes of the '''s 7.1(1) Table''', and  also for new and re-entrants. The ''EI Act'' classifies violations in the following manner under s 7.1(5)(a):
 
*a) Minor violation: if the value of the violation is less than $1,000;
*b) Serious violation: if the value of the violation is less than $5,000 (but more than $1,000), it is a serious violation;
*c) Very serious violation: if the value of the violation is over $5,000, it is a very serious violation.
 
Under s 7.1(6), the value of a  violation for purposes of classification is the amount of overpayment of benefits resulting from acts on which the violation is based. If the claimant is disqualified or disentitled, the value is the total amount of benefits they would have collected, divided by two.
 
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Revision as of 21:38, 25 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
3. Family Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Marriage
 · IV. Divorce
 · V. Uncontested Divorce
 · VI. Simple Divorce Procedure
 · VII. Alternatives to Divorce
 · VIII. Family Violence
 · IX. Assets
 · X. Spousal and Child Support
 · XI. Parenting Orders/Guardianship/Contact
 · XII. Children and the Law
 · XIII. Adoption
 · XIV. Name Changes
 · XV. Court Procedures

 · Appendix A: Glossary
v • d • e




v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


A. Family Law Act

Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.

Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.

There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection

Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).

Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.

A. Divorce Act

Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes.

Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse.

Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA).

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