Difference between pages "Civil Claims and Family Violence" and "Victims of Relationship Violence (4:VI)"

Revision as of 03:04, 3 November 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.

A. BC Government Policy

The BC Government has developed a policy for police, Crown, corrections, child welfare workers and other service providers who deal with people experiencing violence in relationships. This is the Violence Against Women in Relationships Policy (See section II.2). The Policy can be accessed online here.

1. Arrest and Charge

It is police policy that calls relating to violence within a relationship/domestic violence are to be given priority for assessment and response. This includes all reported breaches of No Contact Orders, Peace Bonds, or civil protection orders. This is to ensure the safety of victims who may be at risk.

It is also police policy that if the officer has grounds to believe that an offence has occurred, especially if there is a possibility that the offence may reoccur, the officer is to arrest the alleged offender. If the alleged offender left the scene the police will make immediate efforts to locate and arrest the suspect where grounds exist. They will also complete a Report to Crown Counsel with a request for an arrest warrant.

Police will assess the risk of violence the alleged offender presents and determine whether to release the alleged offender immediately, under conditions, or to hold the alleged offender in custody in order to have a bail hearing. At a minimum, some conditions are usually imposed on the alleged offender. If the alleged offender is arrested and subsequently released from custody, the police will normally make every effort to notify the victim and explain any conditions prior to the accused’s release. Where there is evidence that an offence occurred, the police will submit a Report to Crown Counsel recommending a charge even if no injury has occurred and regardless of the victim’s desire or unwillingness to testify. It is the responsibility of Crown Counsel and the police to pursue criminal charges, not the victims. Victims do not need to provide a written statement, however, the police may encourage the victim to do so. Police should also refer all victims to victim services and arrange safe transportation to transition homes or safe shelters. In power-based crimes, such as sexual assault, police will refer victims to a community-based victim services worker or program, rather than a police-based victim services program, if the program exists in the community. Not all communities in British Columbia have a community-based victim service program. Please see the Victim Services Directory referred to in this chapter for a list of programs in British Columbia.

2. Requirements of Offender Diversion

The court is aware that the accused may exert influence upon the victim that affects the court process. For example, charges will not to be stayed before trial where there are threats that may affect the victim’s willingness to testify, there is a history of violence, or where the victim refused to meet with Crown Counsel, making it impossible to assess the situation.

Similarly, diversion from the criminal justice system (known as alternative measures) in cases of violence in relationships is generally considered inappropriate. In exceptional circumstances, diversion may be considered, but only if there is no significant physical injury, there is no history of spousal violence, and there is no reason to conclude that there is a significant risk of further offences. The Crown’s policy is that use of alternative measures must not be inconsistent with the protection of society.

B. Court Orders

There are various orders available to protect a victim of violence in a relationship. Guides on both peace bonds and protection orders in English, French, Punjabi, and Chinese can be found here.

1. Criminal Court Order

A peace bond, which is available under s 810 of the Criminal Code, is an order made by a judge that requires the defendant to keep the peace. This is a limited remedy that protects a victim for a period of up to 12 months. A victim seeking a peace bond should go to the Justice of the Peace at the Provincial Court Office with the police report (or at least, the report number) and lay an Information. The victim can go without a police report, but the Justice of the Peace will most likely ask for one. The victim does not need to show that they have been injured, only that they have a reasonable fear of injury to themselves or damage to their property at the hands of the defendant. This reasonable fear should be present or ongoing. Previous threats or assaults should be brought up.

A victim should be advised to ask for a no-contact order as a condition of the peace bond. A no-contact order can be varied to be permissible contact, such that a defendant and a victim can have contact up until the victim withdraws consent. Contact in this context means both direct and indirect communication, such as phone calls, emails, messages, and visits to the victim’s workplace. The Justice of the Peace should also be informed if the defendant possesses or has access to firearms. Note that the police, and anyone else concerned, may also apply for a peace bond. Consult this for more information on no-contact orders.

If the Information is accepted, a hearing date is set, usually about two weeks later. The victim will most likely be subpoenaed as a witness for the Crown. Victims should be aware that failure to appear is an offence. If the victim does not want to proceed with the Peace Bond and Crown Counsel does, the victim may have to show up to explain their decision to the judge.

A breach of the Peace Bond is a punishable crime, with a maximum penalty of $5 000 and/or six months in jail on summary conviction, or incarceration for up to four years on indictment. The actual Peace Bond, however, is not considered a criminal charge.

2. Civil or Family Court Orders

A number of orders are available pursuant to the Family Law Act, SBC 2011, c 25 [FLA]. A victim or their representative can bring an application in Provincial (Family) Court or in the British Columbia Supreme Court. Orders involving property such as exclusive use of the family home can only be obtained in Supreme Court. However, in cases where there are urgent safety concerns, you should contact the police before pursuing the matter in Family Court as the police will respond immediately, and the family court process takes time.

a. Protection Orders (FLA Part 9)

A protection order limits contact and communication between family members where there is a safety risk. It is designed to protect “at-risk family members,” defined as people whose safety and security is or is likely at risk from family violence carried out by a family member. An application for a protection order may be made by a person claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative. A protection order may restrain a family member from contacting or communicating with an at-risk family member and from attending at or entering a place regularly attended by the at-risk family member (FLA, s 183). An application for a protection order may be made without notice, but in such applications, the court still has the option to set aside the order or change it in some respect on application by the party against whom the order is made (FLA, s 186). Unless otherwise stated, a protection order expires one year after the date it is made. Breach of a protection order under the FLA is a criminal offence.

b. Temporary Orders Respecting Family Residence (FLA s 90)

This order is only available from the BC Supreme Court. It gives the victim the legal right to occupy the home exclusive of the other party, or to possess and use specified personal property stored at the family residence, including to the exclusion of the other party. The victim and the other party must be spouses, meaning they must be married or have been living in a marriage-like relationship and have done so for a continuous period of at least two years, or have a child together. This order lasts as long as they both have a legal right to be on the property. A court does not have jurisdiction to grant this order where the family home is situated on an Indian reserve.

C. A Note on Services That May Be Harmful to Victims' Interests

Not all services that claim to be helpful or protective of victims’ interests really are. For instance, some advocacy organizations have noted that some services are not healthy for women experiencing violence. Marriage counselling, couples’ therapy, and mediation promote reconciliation but may not address underlying issues such as power imbalance and disrespect towards women. Some programs for offenders may not challenge the man’s beliefs and attitudes towards women.

However, it must also be noted that an abuser may be any gender and that the victim may also be any gender. Victims and their advocates should always make sure that the resources and services that they are considering will be beneficial to victims’ interests.

An individual who is a victim of violence should also be advised that with regard to Compulsory Family Mediation, they can apply to not participate. The victim should be advised to consult a lawyer.

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-{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
+{{REVIEWED LSLAP | date= June 30, 2021}}
-|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
+{{LSLAP Manual TOC|expanded = victims}}
-}}
-==Civil claims for family violence==
-The terms ''civil claims'' and ''tort claims'' are used interchangeably here. While most family law claims (e.g. claims for divorce, spousal support, division of property, etc.) are ''family law issues'' that are governed by legislation like the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', the right to sue someone for inflicting violence is its own claim in law. Claims for ''assault and battery'' are ''civil claims''/''tort claims'', and exist outside of the ''[[Family Law Act]]''.
-Certainly, tort claims for abuse and violence can overlap with family law issues, but it helps to know that tort claims for abuse and violence arise independently from the ''[[Family Law Act]]'' and its treatment of ''family violence''. The ''Family Law Act'' has its own definition of ''family violence'' (including non-physical forms), emphasizes its impact on decisions around the care of children, and provides specific mechanisms like protection orders that are discussed in the section on [[Family Violence and the Family Law Act]] in this chapter.
+== A. BC Government Policy ==
-==Introduction to tort law claims==
+The BC Government has developed a policy for police, Crown, corrections, child welfare workers and other service providers who deal with people experiencing violence in relationships.  ''This is the Violence Against Women in Relationships Policy'' ('''See section II.2''').  The Policy can be accessed online [http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/victims-of-crime/vs-info-for-professionals/info-resources/vawir.pdf here].
-The word ''tort'' comes from the Latin word for ''wrong'', and tort law deals with things like personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, etc. The legal definition of a tort is ''a breach of a duty owed by someone to someone 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 sorts of tort claims aren't spelled out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''. Tort claims are part of the ''common law'', the law that the courts (as opposed to the legislature) have created and maintained for hundreds of years.
-If a claim for assault and battery is made in a family law claim, it will be treated by a judge as a ''tort law'' claim, and bring ''common law'' principles and rules into the case.
+=== 1. Arrest and Charge ===
-Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy for a victim of family violence is primarily ''restorative'' or ''compensatory''. They would ask for an award of ''damages'' to make good the harm the person suffered and its consequences. Damages are money payments and may be awarded for, among other things:
+It is police policy that calls relating to violence within a relationship/domestic violence are to be given priority for assessment and response.  This includes all reported breaches of No Contact Orders, Peace Bonds, or civil protection orders.  This is to ensure the safety of victims who may be at risk.
-*pain and suffering resulting from the violence, sometimes just called general damages,
+It is also police policy that if the officer has grounds to believe that an offence has occurred, especially if there is a possibility that the offence may reoccur, the officer is to arrest the alleged offender. If the alleged offender left the scene the police will make immediate efforts to locate and arrest the suspect where grounds exist. They will also complete a Report to Crown Counsel with a request for an arrest warrant.
-*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 (this is sometimes referred to as lost earning capacity),
-*rehabilitation and job retraining <span class="noglossary">costs</span>, 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''.
+Police will assess the risk of violence the alleged offender presents and determine whether to release the alleged offender immediately, under conditions, or to hold the alleged offender in custody in order to have a bail hearing.  At a minimum, some conditions are usually imposed on the alleged offender.
+If the alleged offender is arrested and subsequently released from custody, the police will normally make every effort to notify the victim and explain any conditions prior to the accused’s release.
+Where there is evidence that an offence occurred, the police will submit a Report to Crown Counsel recommending a charge even if no injury has occurred and regardless of the victim’s desire or unwillingness to testify.  It is the responsibility of Crown Counsel and the police to pursue criminal charges, not the victims.  V'''ictims do not need to provide a written statement''', however, the police may encourage the victim to do so.
+Police should also refer all victims to victim services and arrange safe transportation to transition homes or safe shelters.  In power-based crimes, such as sexual assault, police will refer victims to a community-based victim services worker or program, rather than a police-based victim services program, if the program exists in the community.  Not all communities in British Columbia have a community-based victim service program.  Please see the Victim Services Directory referred to in this chapter for a list of programs in British Columbia.
-Aggravated damages are awarded when the wrongful act took place in humiliating or undignified circumstances or when the wrongful act was particularly horrendous. By law, aggravated damages are to be combined with general damages. Punitive damages are not intended as compensation to the victim, but rather are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." They are an effort by the court to deter others from committing similar acts.
+=== 2. Requirements of Offender Diversion ===
-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. Assault and battery can include sexual assault, and a spouse can make a tort claim against their former spouse for sexual assault.
+The court is aware that the accused may exert influence upon the victim that affects the court process.  For example, charges will not to be stayed before trial where there are threats that may affect the victim’s willingness to testify, there is a history of violence, or where the victim refused to meet with Crown Counsel, making it impossible to assess the situation.
-==Starting a civil claim==
+Similarly, diversion from the criminal justice system (known as alternative measures) in cases of violence in relationships is generally considered inappropriate.  In exceptional circumstances, diversion may be considered, but only if there is no significant physical injury, there is no history of spousal violence, and there is no reason to conclude that there is a significant risk of further offences.  The Crown’s policy is that use of alternative measures must not be inconsistent with the protection of society.
-A tort claim must be made 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 [[Form F3 Notice of Family Claim]] or [[Form F5 Counterclaim]]. Although a tort claim can be made on its own, without claims for things like divorce, parenting arrangements, and so forth, if you want to make a claim in tort as well as other family law claims, it is very important to include all your claims in one proceeding because otherwise you might not be permitted to bring the tort claim separately at a later date.
-Tort claims can only be heard by the Supreme Court. The Provincial Court does not have the jurisdiction to deal with tort claims.
-==The challenges of tort claims==
+== B. Court Orders ==
-This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence. It is only meant to bring to the reader's attention the difficulties that can sometimes accompany tort claims relating to family violence. In spite of these difficulties, it can be empowering and liberating for a victimized spouse to hold an abusive spouse accountable for family violence and see justice done. If you have been sexually and/or physically assaulted, you should talk to a lawyer who is experienced in handling such claims and seek advice.
+There are various orders available to protect a victim of violence in a relationship.  Guides on both peace bonds and protection orders in English, French, Punjabi, and Chinese can be found [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/protection-order-registry here].
-The first drawback of a tort claim is that 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. In order to succeed in your claim, you will have to prove that the assault or sexual assault took place, and that injuries resulted. It is often quite complicated to prove injuries, especially where they are mainly psychological or emotional.
+=== 1. Criminal Court Order ===
-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 practise family law do not work on a contingency basis where they get paid out of the client's award. They charge by the hour.
+A peace bond, which is available under s 810 of the Criminal Code, is an order made by a judge that requires the defendant to keep the peace.  This is a limited remedy that protects a victim for a period of up to 12 months.  A victim seeking a peace bond should go to the Justice of the Peace at the Provincial Court Office with the police report (or at least, the report number) and lay an Information.  The victim can go without a police report, but the Justice of the Peace will most likely ask for one.  The victim does not need to show that they have been injured, only that they have a reasonable fear of injury to themselves or damage to their property at the hands of the defendant. This reasonable fear should be present or ongoing. Previous threats or assaults should be brought up.
-Secondly, even if you're successful, your spouse must have some money or other assets from which they 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''.
+'''A victim should be advised to ask for a no-contact order as a condition of the peace bond.''' A no-contact order can be varied to be permissible contact, such that a defendant and a victim can have contact up until the victim withdraws consent. Contact in this context means both direct and indirect communication, such as phone calls, emails, messages, and visits to the victim’s workplace. The Justice of the Peace should also be informed if the defendant possesses or has access to firearms.  Note that the police, and anyone else concerned, may also apply for a peace bond. Consult [https://pubsdb.lss.bc.ca/pdfs/pubs/If-You-Have-a-No-Contact-Order-Made-Against-You-eng.pdf this] for more information on no-contact orders.
+If the Information is accepted, a hearing date is set, usually about two weeks later.  The victim will most likely be subpoenaed as a witness for the Crown. Victims should be aware that failure to appear is an offence. If the victim does not want to proceed with the Peace Bond and Crown Counsel does, the victim may have to show up to explain their decision to the judge.
-Note, however, that courts have factored damages for assault and battery into the calculation of who gets what when it comes to division of assets. In ''[http://canlii.ca/t/1f56v Megeval v. Megeval]'', 1997 CanLII 3721 (BCSC), a tort claim was made in the same proceeding as a division of property claim. The court divided the family property equally between the parties, but awarded Mrs. Megeval $139,150 in damages for injuries resulting from assault. This amount was paid from Mr. Megeval’s share of the family property.
+A breach of the Peace Bond is a punishable crime, with a maximum penalty of $5 000 and/or six months in jail on summary conviction, or incarceration for up to four years on indictment.  The actual Peace Bond, however, is not considered a criminal charge.
-A third drawback to making a tort claim is 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 also have to 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 by an independent expert appointed by your ex-partner.
-==Limitation periods==
+=== 2. Civil or Family Court Orders ===
-A ''limitation period'' is a deadline by which a claim must be made and an action started. If there is an applicable limitation period, once it is expired you cannot make the claim. For assaults involving people whose relationship is not personal or one of dependency, the limitation period is generally two years after the incident.
+A number of orders are available pursuant to the ''Family Law Ac''t, SBC 2011, c 25 [''FLA''].  A victim or their representative can bring an application in Provincial (Family) Court or in the British Columbia Supreme Court.  Orders involving property such as exclusive use of the family home can only be obtained in Supreme Court. '''However, in cases where there are urgent safety concerns, you should contact the police before pursuing the matter in Family Court as the police will respond immediately, and the family court process takes time.'''
-There is not likely any limitation period that applies to violence between spouses or between parents and children.
+==== a. Protection Orders (''FLA'' Part 9) ====
-Under s.3(1) of the provincial ''[http://canlii.ca/t/8qx3 Limitation Act]'', there is no limitation period to claims based on sexual misconduct.
+A protection order limits contact and communication between family members where there is a safety risk.  It is designed to protect “at-risk family members,” defined as people whose safety and security is or is likely at risk from family violence carried out by a family member.  An application for a protection order may be made by a person claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative.  A protection order may restrain a family member from contacting or communicating with an at-risk family member and from attending at or entering a place regularly attended by the at-risk family member (''FLA'', s 183).  An application for a protection order may be made without notice, but in such applications, the court still has the option to set aside the order or change it in some respect on application by the party against whom the order is made (''FLA'', s 186).  Unless otherwise stated, a protection order expires one year after the date it is made.  Breach of a protection order under the FLA is a criminal offence.
-Similarly, there is no limitation period on claims relating to non-sexual assault if the claimant was a minor or living in a personal or dependency relationship s.3(i)(k).
+==== b. Temporary Orders Respecting Family Residence (FLA s 90) ====
-==Awards==
+This order is only available from the BC Supreme Court.  It gives the victim the legal right to occupy the home exclusive of the other party, or to possess and use specified personal property stored at the family residence, including to the exclusion of the other party.  The victim and the other party must be spouses, meaning they must be married or have been living in a marriage-like relationship and have done so for a continuous period of at least two years, or have a child together.  This order lasts as long as they '''both''' have a legal right to be on the property.  A court does not have jurisdiction to grant this order where the family home is situated on an Indian reserve.
-The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. It is important to get legal advice to decide whether or not making such a claim is economically worthwhile in your particular circumstances. The range of outcomes is very wide and many factors go into a judge’s assessment of the appropriate award, but here are some awards that the courts have made for assault and battery in a family context:
-* In [http://canlii.ca/t/g2h5c "A.M. v. S.O."], 2014 BCSC 4, physical assault in the form of an open-handed blow to the head resulted in $20,000 for general damages.
+== C. A Note on Services That May Be Harmful to Victims' Interests ==
-* In ''[http://canlii.ca/t/fsxwh Bird v. Kohl]'', 2012 BCSC 1424, the serious shoulder fracture, concussion, lacerations, and scarring that resulted from repeated strikes with a shovel handle amounted to $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages, and $25,000 for lost earning capacity.
-* In ''[http://canlii.ca/t/fwktw Constantini v. Constantini,]'' 2013 ONSC 1626, verbal abuse during the relationship and pre-meditated break-in and aggressive assault post-separation did not produce permanent disability, but it did result in post-traumatic stress disorder. $15,000 was awarded for general and aggravated damages.
-* In ''[http://canlii.ca/t/fs8l9 D.G. v. R.M.]'', 2012 SKQB 296, a single instance of “horrific” sexual assault including striking, kicking, and biting. $35,000 was awarded for general damages.
-* In ''[http://canlii.ca/t/1k2jm Gould v. Sandau]'' 2005 BCCA 190, the trial judge awarded $2,500 for an assault that broke a hand.
-* In ''[http://canlii.ca/t/1f56v Megeval v. Megeval],'' 1997 CanLII 3721 (BCSC) assault causing permanent disability resulted in $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
-* In ''N.C. v. W.R.B.'' [1999] O.J. No. 3633 (Ont. S.C.J.) multiple instances of sexual, physical verbal and emotional abuse that caused post-traumatic stress disorder was awarded $65,000 for general damages and $25,000 for aggravated damages.
-* In ''[http://canlii.ca/t/fps0x Shaw v. Brunelle]'', 2012 ONSC 590 a serious wrist fracture resulting from physical ejection from the home resulted in $65,000 for general and aggravated damages, $25,000 for lost earning capacity, and an unspecified amount for cost of future care.
-These cases have been included only to give you a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim – seek legal advice from a lawyer with experience in this area.
+Not all services that claim to be helpful or protective of victims’ interests really are. For instance, some advocacy organizations have noted that some services are not healthy for women experiencing violence.  Marriage counselling, couples’ therapy, and mediation promote reconciliation but may not address underlying issues such as power imbalance and disrespect towards women. Some programs for offenders may not challenge the man’s beliefs and attitudes towards women.
+However, it must also be noted that an abuser may be any gender and that the victim may also be any gender.  Victims and their advocates should always make sure that the resources and services that they are considering will be beneficial to victims’ interests.
+'''An individual who is a victim of violence should also be advised that with regard to Compulsory Family Mediation, they can apply to not participate.'''  The victim should be advised to consult a lawyer.
-==Resources and links==
+{{LSLAP Manual Navbox|type=chapters1-7}}
-===Legislation===
-* ''[http://canlii.ca/t/8qx3 Limitation Act]''
-{{REVIEWED | reviewer = [[Fiona Beveridge]] and [[Samantha Simpson]], April 30, 2019}}
-{{JP Boyd on Family Law Navbox|type=chapters}}
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