Difference between pages "Social Security Tribunal Overview (8:XIII)" and "Family Violence (3:VIII)"

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If the claimant is unhappy with the decision following the Reconsideration, the claimant may file an appeal to the SST. General information about the Tribunal appeal process can be found at: http://www.canada.ca/en/sst/index.html


A comprehensive guide to appeals to the General Division and Appeals Division called “Challenging A Decision About Your Employment Insurance Claim: Reconsideration and the Social Security Tribunal” can be found on the Community Legal Assistance Society website at: http://www.clasbc.net/self_help_guides.
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== A. General Division ==
== A. Family Law Act ==


The SST must receive a claimant’s appeal within 30 days of the claimant’s becoming aware (including being told in a phone call) of the Reconsideration decision. There are two ways to file an appeal:
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.  


#Fill out the Notice of Appeal to the SST General Division – EI form and mail or fax it to the SST.  The form can be filled out on the computer and then printed or printed and filled out by hand. This form is accessible at the following link: https://www1.canada.ca/en/sst/ei/eiprocess.html.  If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
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.  
#Write the SST a letter of appeal containing all the information required in the form. If the claimant fails to provide all of the information required, the appeal may not be accepted.


Upon receiving an incomplete appeal, the Tribunal will send a letter to the applicant asking them to file all missing information within 30 days of the date of the letter. If the applicant does this, the Tribunal will consider the appeal to have been filed the date of the original incomplete application for the purposes of meeting the deadline to file an appeal.
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


Once the SST receives a completed notice of appeal, it will notify Service Canada of your appeal.
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 a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form.  However, the decision is ultimately the Tribunal’s as to whether to grant the extension.
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.  


When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file.  The Member will review the file and will dismiss any file which the Member decides has no reasonable chance of success.  The SST will notify the claimant if they are considering summarily dismissing an appeal, and provide the claimant with an opportunity to make additional submissions before the appeal is dismissed.  The application to appeal a dismissal can be found here: https://www1.canada.ca/en/sst/forms/sst-lta-ad-is-e.pdf.
== A. Divorce Act ==


If the appeal is proceeded with, there are several types of hearings available:
Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes.


*Written: The Member will ask the claimant questions and request a written response by a certain date
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.
*Telephone
*Videoconference
*In-Person


The Member will choose the type of hearing to be used.  The Tribunal will telephone or write to the claimant to arrange the hearing.  Following the hearing, the Member will send the claimant a copy of the decision. 
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).
 
=== 1. Discretionary Decisions ===
 
Discretionary decisions such as the Commission’s refusal to extend time, or its decision regarding the length of disqualification, can only be reversed if it is decided that the original decision:
 
*a) ignored or failed to consider a relevant factor, including something the Commission was unaware of, such as health problems or other mitigation;
*b) acted on an irrelevant factor;
*c) committed a jurisdictional error; or
*d) acted against the principles of natural justice, such as acting with bias or bad faith.
 
The issue is whether the Commission’s exercise of discretion in the original decision was reasonable.  However, where the Commission has failed to consider relevant evidence, or where there is new evidence presented for the first time by the claimant, the reviewer can exercise remedial authority by making the decision that should have been made. It is rarely difficult in a deserving case to show that the Commission has disregarded some relevant fact.
 
=== 2. Amount of Penalty ===
 
Courts have also determined that the amount of a penalty for making false statements may also be appealed only to the extent that in coming up with the amount of penalty, the Commission committed an error, such that the decision or the decision making process was unreasonable.  That said, as above, one can often find some relevant “fact” that the Commission failed to consider.
 
Keep in mind that the decision to apply a penalty can always be appealed.
 
== B. Appeal Division ==
 
The Appeal Division of the SST must receive a claimant’s appeal within 30 days of the claimant’s receipt of the General Division’s decision.  There are two ways to file an appeal:
 
#Fill out the Notice of Appeal to the SST General Division – EI form and mail or fax it to the SST.  The form can be filled out on the computer and then printed or printed and filled out by hand.  This form is accessible at the following link: https://www1.canada.ca/en/sst/forms/sst-noa-gd-is(2016-10).pdf. If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
#Write the SST a letter of appeal containing all the information required in the form.  It is important to ensure that all of the required information is included.
 
If a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form.  However, the decision is ultimately the Tribunal’s as to whether to grant the extension.  When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file to decide whether or not to grant permission to allow the appeal to proceed. The grounds for appeal to the Appeal Division are:
 
*The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction
*The General Division erred in law in making its decision
*The General Division based its decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the evidence before it
 
A claimant will be informed in writing if their application for permission to appeal is dismissed.  Permission is not required when appealing a General Division decision to summarily dismiss the appeal.
 
If permission is granted for the appeal, the parties have 45 days to provide submissions.  If no submissions are received, the Member will decide whether  to allow the appeal to proceed based on the documents or submissions on file. 
 
In some cases the Appeal Division will decide solely on the basis of the written record and submissions, and the Member will decide if a hearing is necessary. The hearing process is the same as the general division
 
Following the hearing, the Member will send the claimant a copy of the decision.  The decisions of the Appeal Division are subject to review under the Federal Courts Act.
 
== C. Re-opening a Decision ==
 
A claimant can apply to the Commission or the SST to rescind or amend a decision if there are new facts or the decision was made without knowledge of, or was based on a mistake as to, some material fact.  This application can only be made once and must be submitted within one year of the decision.  For more information, use the following link: http://www1.canada.ca/en/sst/ap/eigd-rescind-amend.html.
 
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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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