Family Violence in the Family Law Act and the Divorce Act

Family violence under the Family Law Act

Family violence is dealt with under the Family Law Act when there are questions about:

• protecting an at-risk family member from another family member, and/or
• parenting arrangements and what is in the best interests of a child.

Part 9 of the Act deals with protection orders that can restrain a family member from communicating with, following or going near another family member, or from possessing weapons. These are discussed first.

Part 4, Division 1 of the Act deals with care of and time with children. Sections 37 and 38 say family violence as a very important factor when assessing the best interests of a child and making an agreement or order about care of and time with children.

Definition of family violence

The Family Law Act defines family violence in a broad and inclusive way to capture more than just forceful physical contact. Non-physical forms of abuse such as harassment, intimidation and even financial sabotage can qualify where these actions instill fear. No long-term intention to follow through with the act being threatened is required for it to be considered family violence.

Section 1 of the Family Law Act defines the term:

"family violence" includes

(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,

(b) sexual abuse of a family member,

(c) attempts to physically or sexually abuse a family member,

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence

So far, the courts have found a wide range of actions to be family violence. The following are just some examples of family violence:

• In K.R. v. J.D., 2017 BCSC 182, a parent's derogatory and demeaning comments about the other parent, on occasion in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
• In 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.
• In Hokhold v. Gerbrandt, 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct which included sending excessive demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
• In 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 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.
• 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:

• In 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.
• In 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.

It should finally be cautioned that the courts take a dim view of family violence claims that have other motivations. In L.S. v. G.S., 2014 BCSC 187, the court said:

More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant’s conduct. The provisions in the FLA relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties.

Using the Family Law Act for protection

The Family Law Act offers a number of different restraining orders that can be very helpful and can provide the same level of protection as the criminal recognizance does.

Protection orders under Part 9

Protection orders are the primary way family violence is addressed under the Family Law Act. Under s. 183(1), an at-risk family member, someone on behalf of an at-risk family member, or the court itself can ask for a protection order, and the claim for a protection order needn't be made with any other claims under the act.

The act has a number of really important definitions that relate to protection orders. At-risk family member and family member are defined in ss. 182 and 1, respectively:

"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member

"family member", with respect to a person, means

(a) the person's spouse or former spouse,

(b) a person with whom the person is living, or has lived, in a marriage-like relationship,

(c) a parent or guardian of the person's child,

(d) a person who lives with, and is related to,

(i) the person, or

(ii) a person referred to in any of paragraphs (a) to (c), or

(e) the person's child,

and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e)

If you read the definition of family member carefully, you'll see that people who are just dating or are in another casual relationship aren't family members as the Act defines the term. This means that people who are just dating or are in another casual relationship can't apply for protection orders under Part 9 of the Family Law Act. (They can, however, apply for a peace bond under the Criminal Code.)

Making protection orders

When the court is asked to make a protection order, it must consider certain risk factors set out at s. 184(1):

(a) any history of family violence by the family member against whom the order is to be made;

(b) whether any family violence is repetitive or escalating;

(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;

(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f) the at-risk family member's perception of risks to his or her own safety and security;

(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

Essentially, the court is required to look at the family violence in the overall context of the couple and the history and present circumstances of their relationship. When a child is a family member, under s. 185, the court must also consider:

• whether the child might be exposed to family violence if a protection order isn't made, and,
• whether a protection order should also be made for the protection of the child.

Recent court decisions like Hughes v. Erickson, 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. Hughes v. Erickson, 2014 BCSC 1952 Even one act of physical violence may suggest that violence is likely to occur in the future. It is not enough for the person asking for a protection order to say that they are afraid or at risk of violence; evidence must be presented of one of the s. 184 risk factors to allow the court to decide if it should grant a protection order Whitelock v. Whitelock, 2014 BCSC 1184.

Protection order terms

The available protection orders are listed at s. 183(3) and include orders:

• restraining a person from communicating with or contacting the at-risk family member, going to the at-risk family member's home, workplace or school, and stalking the at-risk family member,
• limiting how the person communicates with the at-risk family member,
• directing the police to remove the person from the family home or accompany them to remove personal property, and
• requiring the person to report to the court or to another person.

Under s. 183(3)(e), the court can impose any other terms in a protection order that may be necessary to protect the at-risk family member or implement the protection order. Protection orders remain in place for one year, unless the order specifies another term.

If a protection order, an order from another jurisdiction that is like a protection order, or a Criminal Code no-contact or no-communication order is made, any previous Family Law Act orders are suspended to the extent of any conflict with the protection order. In other words, if there's an older order for contact with the children, but a protection order is made that stops the person with contact from communicating with the children, the parts of the older order about contact would be suspended.

To find out more about protection orders, you may wish to read the booklet For Your Protection: Peace Bonds and Family Law Protection Orders, or read How to Apply for a Family Law Protection Order.

Changing protection orders

When a protection order has been made and hasn't yet expired, either party can apply to vary the order to:

• extend or shorten the period of time that the order is in effect,
• vary the terms of the order, or
• end the order.

When a protection order has been made without notice, that is, if the application was made without letting the other party know about the application ahead of time, the other party can ask the court to cancel the order.

Enforcing protection orders

Protection orders can't be enforced under the Family Law Act, only by s. 127 of the Criminal Code, which makes it an offence to breach of a court order. However, s. 188(2) says this:

A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may

(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and

(b) if necessary for the purpose of paragraph (a), use reasonable force.

Family violence and the best interests of the child analysis

Part 4, Division 1 of the Act (s. 37 and s. 38) deal with the factors that determine what's in the best interests of the child. The issue of family violence must be considered in the context of any application to establish or change guardianship, parenting arrangements or contact with a child.

A finding of family violence can greatly impact a court's decision around parenting arrangements and how to allocate parental responsibilities in keeping with the best interests of a child. A court could decide the person responsible for family violence should have no parenting time, supervised parenting time, or no parenting time or responsibilities.

This said, there are cases where the court granted equal parenting even where one parent was responsible for family violence. It is simply impossible to predict what a court will consider to be in the best interests of a child in any particular case as the analysis is very fact specific. According to s. 37 of the Family Law Act, when undertaking the best interests analysis, a court must consider, among other things, the following:

• the impact of any family violence on the child’s safety, security or well-being,
• whether the family violence is directed toward the child or another family member,
• whether the actions of a person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child’s needs,
• the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child,
• any civil or criminal proceeding relevant to the child’s safety, security or well being.

Where specific facts are important, the evidence you produce is important. As such, if you are asking a court to make an order respecting guardianship, parenting arrangements or contact with a child and there has been family violence, or if you are defending such an application, it is important to focus evidence that addresses these factors.

Conduct orders

Conduct orders under Part 10, Division 5 of the Family Law Act give the court some control to help the parties and the court process. They are different from family law protection orders, and not as tailored to addressing family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, tell a party to attend a counselling program, or say how and when parties should communicate with eachother.

A conduct order may be seen as a less extreme way to reduce bad behaviour and hostilities compared to a family law protection order. While a conduct order may be less coercive, a court must consider whether it is enough. Under s. 255 a court will not issue a conduct order restricting communication if a family law protection order would be more appropriate. Likewise, a court will not decline to impose a family law protection order merely because a conduct order was previously in place.

A court can only make conduct orders for one of four purposes set out at s. 222:

At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:

(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;

(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;

(c) to prevent misuse of the court process;

(d) to facilitate arrangements pending final determination of a family law dispute.

Conduct orders include orders:

• requiring a person to attend counselling, or a specified service or a program like an anti-violence or anger management course,
• restricting communication between the parties,
• requiring a person to pay the costs associated with the family home, like mortgage or rent payments, property taxes and utilities,
• restricting a person from terminating the utilities serving the family home,
• requiring a person to supervise the removal of personal property from the family home,
• requiring a person to post security to guarantee their good behaviour, and
• requiring a person to report to the court to another person, like a counsellor or therapist.

Conduct orders can be enforced in a number of ways under s. 228, including by requiring a person to pay up to $5,000 as a fine or to a party, or by jailing the person for up to 30 days. Jail will only be ordered when nothing else will secure the person's compliance with the conduct order.

Other orders

Other orders are available under the Family Law Act that could be used to address issues relating to family violence.

• Exclusive occupancy: Under s. 90, the court may give one party exclusive occupancy of the family home and the property in the family home. This isn't a restraining order, in the sense that it prohibits the other party from entering the home, but only the person with exclusive occupancy is allowed to live there.
• Supervised parenting time and contact: Under ss. 45 and 59, a person's parenting time or contact can be subject to a requirement that it be supervised by a third party, like a relative or a professional supervisor.
• Conditions of parenting time and contact: Under s. 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might restrict where the children are exchanged, and how the parties interact when the children are exchanged, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.

Resources and Links

Legislation

• Family Law Act
• Supreme Court Family Rules, Rule 15-1(2)

Forms

• PCFR Form 25 Protection Order

Links

• Protection Orders - Questions and Answers
• For Your Protection: Peace Bonds and Family Law Protection Orders
• How to Apply for a Family Law Protection Order

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Gayle Raphanel and Samantha Simpson, August 5, 2017.

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.