Difference between revisions of "Family Violence Overview"

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{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = violence}}{{JPBOFL Editor Badge
|ChapterEditors = [[Gayle Raphanel]] and [[Samantha Simpson]]
|CoAuthor = [[Kim Hawkins]], [[Vandana Sood]], [[Elizabeth Cameron]], and [[Rosanna Adams]]
|ChapterEditors = [[Fiona Beveridge]] and [[Samantha Simpson]]
}}
}}
{{Clicklawbadge
{{Clicklawbadge
|resourcetype = critical resources and <br/> common questions on
|resourcetype = critical resources and <br/> common questions on
|link = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
|link = [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues]
}}
}}


==If you are a victim of family violence==
==If you are in danger==
This chapter discusses the laws around family violence. If your safety is threatened, however, you may need immediate help:
'''
* If you are in immediate danger, call 911.
* For crisis support, dial [http://www.clicklaw.bc.ca/helpmap/service/1055 VictimLINK] at 1-800-563-0808 for confidential and multilingual service.
* For more information visit the [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw website] (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety".
* The MyLawBC website has an [http://www.clicklaw.bc.ca/resource/4277 up-to-date tool] that answers question about abuse and family violence and can give you an action plan.
'''
==Introduction==
Family violence includes physical and sexual forms of abuse, but it also includes harmful behaviour such as threats, harassment, emotional abuse and even acts that harm someone's financial autonomy.


Increasingly, the legal system has become more responsive to the realities of family violence, its traumatic effects, and its victims. Legal professionals who work in family law have become more proactive when it comes to assessing the potential for family violence and intervening accordingly. The ''[[Family Law Act]]'' requires all family dispute resolution professionals (lawyers, family justice counselors, mediators, etc.) to watch for warning signs of family violence in relationships. Where warning signs are present, legal professionals try not only to assess ''safety risks'' but also the degree to which family violence impairs the abused party's ability to speak for themselves, advocate for their interests and negotiate a fair agreement.
If your physical safety is in immediate danger, start here first:


This chapter covers laws and legal mechanisms that are useful in addressing family violence. Because family violence is not just a family law topic, this chapter approaches family violence in the context of overlapping areas of law, including:
* '''If you are in immediate danger, call 911.'''
* the ''[[Family Law Act]]'' and its treatment of family violence,
* '''For crisis support, dial [http://www.clicklaw.bc.ca/helpmap/service/1055 VictimLINK] at 1-800-563-0808''' for confidential and multilingual service.
* Child protection issues,
* For more information, visit the [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw website] (www.clicklaw.bc.ca) for a list of websites and other assistance under the heading "Your safety."
* Canada's criminal justice system, with information for victims and those accused, and
* civil claims and the ''law of torts'' designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.


==Overview of the various laws around family violence==


Family violence includes physical abuse, but also non-physical forms of abuse. Section 1 of the ''[[Family Law Act]]'' defines the term:
This chapter talks about the laws and legal mechanisms for dealing with family violence. (Other terms, such as ''gender-based violence'', ''domestic violence'', and ''intimate partner violence'', are more commonly used by anti-violence organizations and have meanings that are similar to family violence.) It covers:


<blockquote><tt>"family violence" includes</tt></blockquote>
* the provincial ''[[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,
<blockquote><blockquote><tt>(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,</tt></blockquote></blockquote>
* the federal ''[[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,
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote>
* the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', and how family violence intersects with [[Family Violence and Child Protection|child protection]] issues,
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote>
* family violence in the context of the federal [[Family Violence and the Criminal Code |''Criminal Code'']], with information for those who have experienced family violence and those accused of crimes, and
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote>
* the [[Suing for Family Violence in a Family Law Claim|law of torts]], another area of the civil law, that lets people ask for compensation when they have been harmed as a result of the actions of other people.
<blockquote><blockquote><blockquote><tt>(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) stalking or following of the family member, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iv) intentional damage to property, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) in the case of a child, direct or indirect exposure to family violence</tt></blockquote></blockquote>


So far, the courts have ruled that a broad range of actions constitute ''family violence''.  The following are just some examples of family violence: 
===The ''Family Law Act''===
* In ''[http://canlii.ca/t/fxjb5 B. (M.W.) v. B. (A.R.)]'', 2013 BCSC 885, a mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders that were drafted by lawyers and these actions prolonged and intensified the litigation.
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 independence and 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.
* In ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875, the Court determined that the father's actions which included sending demanding emails to the mother, failing to pay support, and threatening to close his dental practice, constituted family violence.
* In ''[http://canlii.ca/t/gh679 R. (C.) v. (M.A.)]'', 2015 BCPC 76 the Court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
* In ''[http://canlii.ca/t/g7233 R. (L.A.) v. R. (E.J.)]'', 2014 BCSC 966, the Court found that disparaging remarks made to the children about their mother, as well as disparaging comments made to the mother in the children’s presence, constituted emotional abuse.
* ''[http://canlii.ca/t/glx9n F.(C.) v. V. (D)]'', 2015 BCPC 309, the Court found that there had been family violence as the father broke the mother’s cellphone and a picture on the wall, then kicked a hole in the bathroom door.


A lot depends on the specific facts of the case, however. The following are some examples of where the court determined that there was no family violence:
The legal system's concept of family violence has expanded beyond physical violence, reflecting how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have a similar if not greater impact on the safety of family members than physical violence, and can have a significant impact on the outcome of a family law dispute. In many cases, more than one of these types of family violence may be present, and different types of family violence may be used at different times during the relationship. However, the presence of even one type of violent behaviour will meet the definition of family violence and may need to be taken into account when resolving the legal issues that come up when a relationship ends.


* In ''[http://canlii.ca/t/g2zjp S. (L.) v. S. (G).]'', 2014 BCSC 187, the father wanted the Court to declare that the mother’s denial of parenting time constituted family violence. The Court refused. The Court noted that the father failed to provide any evidence of harm to the children.
The ''Family Law Act'' offers a few ways for dealing with family violence, including ''protection orders'', ''conduct orders'', and rules that require the court to consider family violence when deciding what is in the best interests of children.  


* In ''[http://canlii.ca/t/g1rsc E. (J.R.) v. 07----8 B.C. Ltd.]'', 2013 BCSC 2038 the Court held that taking an insistent and even inflexible position in post-separation negotiations did not in that case equate to emotional or psychological abuse.  
The act also requires that all "family dispute resolution professionals," a term which includes lawyers, family justice counselors and mediators, assess the potential for family violence in their cases. Where warning signs of family violence are present, lawyers must first determine if there are any safety risks to their client and their client's family members. They must also assess the degree to which family violence might be impairing the ability of their client to speak for themselves, advocate for their interests, and negotiate a fair agreement.


Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a ''[[Form F3 Notice of Family Claim|Notice of Family Claim]]'' could include a claim for payment of damages resulting from the violence.
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.


This chapter provides an introduction to the differences between criminal law and tort law, the law about personal injuries. It 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 <span class="noglossary">brief</span> look at some child protection issues.
===The ''Divorce Act''===


Two of the most important branches of the law are ''criminal law'' and ''civil law''; there are plenty of others, like constitutional law and administrative law, but these are two of the big ones.  
The ''Divorce Act'' also has a definition of family violence. Like the definition in the ''Family Law Act'', the ''Divorce Act'' definition includes more than physical violence. It includes sexual abuse, threats to kill or harm someone, harassment, psychological abuse, financial abuse, and threats to harm an animal or damage property.


Criminal law deals with a person's offences against the rules of the state. Civil law, on the other hand, in particular that branch of civil law called "tort law" (the word "tort" comes from the Latin word for "wrong"), deals with a person's offences against other people, such as personal injuries, motor vehicle accidents, negligence, assault and battery, trespass, and so forth.  
Like the definition in the ''Family Law Act'', the ''Divorce Act'' also requires judges to consider family violence when making decisions about the parenting arrangements that are in the best interests of children.


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 sort of civil offences aren't set out in laws the way that the rules against robbery or assault are set out in the ''Criminal Code''; they're creatures of the common law, the law that the courts have created.
===Child protection===


That explanation of the difference between criminal law and civil law was a bit technical. Another way of looking at it is through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same basic issue. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim.
The law that deals with child protection issues is the provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''. Each province has its own law about child protection, and these laws can be very different from province to province.


Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law (a crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (a 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.  
In British Columbia, the Ministry of Children and Family Development can get involved if children are being harmed or at risk of being harmed. In the case of Indigenous children, an Indigenous authority may step in instead of the MCFD, and offer support or protection. 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 discusses when children may be placed in the care of MCFD or an Indigenous authority.


If you are punched by someone, for example, that person's conduct may result in both:
===Family violence and the criminal law===


#a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and
Where a family member has committed family violence, they may have also committed a criminal offence and may be charged with an offence by the police. Criminal cases are handled differently than family law and other kinds of civil case. This chapter provides an introduction to the ways that criminal law can affect family law cases involving family violence.
#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.


Possible punishments for someone found criminally guilty include:
If charges are laid under the ''Criminal Code'', the accused person may be ordered to have no contact with the complainant, often called a ''no contact order''. Other orders that could be made include not being allowed to have weapons, or not being allowed to go to the complainant’s home, school or workplace, often called a ''no go order''. If a person charged with a criminal offence is convicted of the offence, their sentence could include further court orders or even time in jail.


* fines,  
The ''Criminal Code'' also provides for ''peace bonds''. Peace bonds are not criminal convictions or sentences, but 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 people in a dating relationship, even if they do not meet the requirements for a protection order under the ''Family Law Act''.
* a jail sentence,  
* both a fine and a jail sentence, or
* imposed terms or conditions, like a restraining order or a peace bond.


In contrast, the goal of civil law is compensation for the victim more so than punishment of the offender. Compensation is for the harm they suffered. Normally, this takes the form of ''damages'', a financial award intended to compensate for things like pain and suffering, lost wages, rehabilitation and medical expenses, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act.
===Family violence and the civil law===
 
Where a family member suffered family violence, they may have a "cause of action" under the civil law. A ''cause of action'' is the right to sue for something, usually compensation. 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 have a "cause of action" for assault or battery.
 
Civil law is a broad area of law, and it includes the ''law of torts'', sometimes known as personal injury law. The law of torts can address not just physical assaults, but a wide range of other harmful actions including violating someone's property or damaging someone's property. The result of a successful tort claim is typically financial compensation, called ''damages''.
 
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, and reviews some of the common difficulties people experience bringing tort cases.
 
==Resources and links==
===Legislation===
 
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* [http://canlii.ca/t/85tk Provincial Court (Child, Family and Community Service Act) Rules]
* [https://canlii.ca/t/b8rn Provincial Court Family Rules]
* [https://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/8qx3 Limitation Act]''
 
===Resources===
* E-book by Dr. Linda C. Neilson, ''[http://commentary.canlii.org/w/canlii/2017CanLIIDocs2 Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases]'' (CanLII February 2017, updated March 2020)
* Legal Aid BC & YWCA, ''[https://www.clicklaw.bc.ca/resource/2231 Mothers Leaving Abusive Partners: Family Law Information]''
* Rise Women’s Legal Centre, ''[https://perma.cc/5ADM-E22W Are We Ready to Change? A Lawyer’s Guide to Keeping Women and Children Safe in BC’s Family Law System]''
* Rise Women’s Legal Centre, ''[https://perma.cc/UJN7-UJA8 Decolonizing Family Law Through Trauma-Informed Practices]''
* Rise Women’s Legal Centre, ''[https://perma.cc/8VWS-7QFU Creating Safety in BC Courts: Key Challenges and Recommendations]''
* West Coast LEAF, ''[https://perma.cc/84US-8G5L Pathways in a Forest: Indigenous Guidance on Prevention-Based Child Welfare]''
* VictimLINK crisis support line: 1-800-563-0808
* Battered Women's Support Services [https://www.bwss.org/ website] and crisis support line: 1-855-687-1868
* Rise Women’s Legal Centre: 1-236-317-9000 or complete an appointment request at https://womenslegalcentre.ca/
* More legal advice, representation and advocacy services related to abuse and family violence on [https://www.clicklaw.bc.ca/helpmap/search?so=r&f=Abuse+%26+family+violence Clicklaw's HelpMap website]
* Rise Women's Legal Centre, ''[https://www.clicklaw.bc.ca/resource/5032 Seeking a Peace Bond: A Guide]'' (available in 12 languages)
* Dial-A-Law Script [https://www.clicklaw.bc.ca/resource/1317 "Peace Bonds and Assault Charges"]
* Ministry of Attorney General's Community Safety and Crime Prevention Branch and Legal Aid BC's booklet [https://www.clicklaw.bc.ca/resource/1319 ''For Your Protection: Peace Bonds and Family Law Protection Orders'']
* [https://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence Clicklaw resources on abuse and family violence]
* [https://www.clicklaw.bc.ca/global/search?k=child%20protection Clicklaw resources on child protection]
* Legal Aid BC's [https://legalaid.bc.ca/publications/subject/4 publications on abuse and family violence]
* Legal Aid BC's Family Law website's information page [https://clicklaw.bc.ca/resource/4642 "Child protection"]
* Rise Women's Legal Centre, ''[https://www.clicklaw.bc.ca/resource/4886 Why Can't Everyone Just Get Along?]''
* Justice Canada's ''[https://www.justice.gc.ca/eng/fl-df/help-aide/index.html HELP Toolkit: Identifying and Responding to Family Violence]''
 
{{REVIEWED | reviewer = [[Rise Women's Legal Centre|Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams]], 16 June 2023}}
 
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[[Category:JP Boyd on Family Law]]

Latest revision as of 23:12, 15 January 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Family Violence
 · FLA & Divorce Act

 · Criminal Code

 · Civil Claims

 · Child Protection
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e
Page Editor(s)
Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams
Previously: Fiona Beveridge and Samantha Simpson
Read: Past contributors
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Clicklaw has critical resources and
common questions on family violence issues.


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."

Overview of the various laws around family violence

This chapter talks about the laws and legal mechanisms for dealing with family violence. (Other terms, such as gender-based violence, domestic violence, and intimate partner violence, are more commonly used by anti-violence organizations and have meanings that are similar to family violence.) It covers:

  • the provincial 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 federal 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 provincial Child, Family and Community Service Act, and how family violence intersects with child protection issues,
  • family violence in the context of the federal Criminal Code, with information for those who have experienced family violence and those accused of crimes, and
  • the law of torts, another area of the civil law, that lets people ask for compensation when they have been harmed as a result of the actions of other people.

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 independence and 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 family violence has expanded beyond physical violence, reflecting how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have a similar if not greater impact on the safety of family members than physical violence, and can have a significant impact on the outcome of a family law dispute. In many cases, more than one of these types of family violence may be present, and different types of family violence may be used at different times during the relationship. However, the presence of even one type of violent behaviour will meet the definition of family violence and may need to be taken into account when resolving the legal issues that come up when a relationship ends.

The Family Law Act offers a few ways for dealing with family violence, including protection orders, conduct orders, and rules that require the court to consider family violence when deciding what is in the best interests of children.

The act also requires that all "family dispute resolution professionals," a term which includes lawyers, family justice counselors and mediators, assess the potential for family violence in their cases. Where warning signs of family violence are present, lawyers must first determine if there are any safety risks to their client and their client's family members. They must also assess the degree to which family violence might be impairing the ability of their client to speak for themselves, advocate for their interests, and negotiate a fair agreement.

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 also has a definition of family violence. Like the definition in the Family Law Act, the Divorce Act definition includes more than physical violence. It includes sexual abuse, threats to kill or harm someone, harassment, psychological abuse, financial abuse, and threats to harm an animal or damage property.

Like the definition in the Family Law Act, the Divorce Act also requires judges to consider family violence when making decisions about the parenting arrangements that are in the best interests of children.

Child protection

The law that deals with child protection issues is the provincial Child, Family and Community Service Act. Each province has its own law about child protection, and these laws can be very different from province to province.

In British Columbia, the Ministry of Children and Family Development can get involved if children are being harmed or at risk of being harmed. In the case of Indigenous children, an Indigenous authority may step in instead of the MCFD, and offer support or protection. This chapter takes a brief look at some child protection issues, what happens when a report of a protection concern is made, and discusses when children may be placed in the care of MCFD or an Indigenous authority.

Family violence and the criminal law

Where a family member has committed family violence, they may have also committed a criminal offence and may be charged with an offence by the police. Criminal cases are handled differently than family law and other kinds of civil case. This chapter provides an introduction to the ways that criminal law can affect family law cases involving family violence.

If charges are laid under the Criminal Code, the accused person may be ordered to have no contact with the complainant, often called a no contact order. Other orders that could be made include not being allowed to have weapons, or not being allowed to go to the complainant’s home, school or workplace, often called a no go order. If a person charged with a criminal offence is convicted of the offence, their sentence could include further court orders or even time in jail.

The Criminal Code also provides for peace bonds. Peace bonds are not criminal convictions or sentences, but 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 people in a dating relationship, even if they do not meet the requirements for a protection order under the Family Law Act.

Family violence and the civil law

Where a family member suffered family violence, they may have a "cause of action" under the civil law. A cause of action is the right to sue for something, usually compensation. 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 have a "cause of action" for assault or battery.

Civil law is a broad area of law, and it includes the law of torts, sometimes known as personal injury law. The law of torts can address not just physical assaults, but a wide range of other harmful actions including violating someone's property or damaging someone's property. The result of a successful tort claim is typically financial compensation, called damages.

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, and reviews some of the common difficulties people experience bringing tort cases.

Resources and links

Legislation

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams, 16 June 2023.


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