Difference between revisions of "Family Violence Overview"

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(Overview of the various laws around family violence)
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==Overview of the various laws around family violence==
 
==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.)
+
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:
  
Because ''family violence'' is not a ''family law'' topic, this chapter covers other areas of the law, including:
 
 
* the ''[[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,
 
* the ''[[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,
 
* the ''[[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 ''[[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,

Revision as of 01:44, 27 November 2023


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 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 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 Child, Family and Community Service Act RSBC 1996, c 46, and how family violence intersects with child protection issues,
  • family violence in the context of Canada's Criminal Code, with information for those who have experienced family violence and those accused of crimes, and
  • civil claims and the law of torts which are designed to make wrongdoers pay compensation to plaintiffs for the losses they have suffered.

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 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 violence has expanded beyond physical violence, reflecting the realities of how abuse and violence impact family members, including children. Fear, intimidation, and coercive control, can have as much or even a greater impact than physical violence on the safety of family members, and can have a significant impact the outcome of a family law dispute. In many cases more than one of these types of violence may be present, or different types of violence may be used at different times during the relationship. However, there is no hierarchy of violence, and the presence of even one type of violent behaviour will satisfy the definition of family violence and may need to be taken into account when resolving the legal issues.

The Family Law Act defines family violence, and provides remedies for dealing with it, including family law protection orders, requiring that courts consider family violence when assessing the best interests of the child factors to decide on parenting arrangements, and other remedies, such as conduct orders.

It is mandatory for family law professionals to assess the potential for family violence and take this into account when formulating their legal strategy. The Family Law Act requires all family dispute resolution professionals (lawyers, family justice counselors, mediators, etc.) to screen for family violence with their clients. Where warning signs are present, legal professionals must first determine if there are any safety risks to family members. They must also assess the degree to which family violence perpetrated by a family member might be impairing the person experiencing family violence’s ability to speak for themselves, advocate for their interests, and negotiate a fair agreement; if necessary, the legal professional should modify their strategy and advice accordingly.

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 applies where the parties are legally married and are seeking a divorce. In 2021, the Divorce Act was updated to include new provisions on family violence. Many families may have legal issues that require them to look at the law in both the BC Family Law Act and the federal Divorce Act.

Child protection

Where children are at risk, the provincial Ministry of Children & Family Development (MCFD) become involved. In the case of Indigenous children, an Indigenous authority may step in instead of the MCFD, and offer support or protection. Child protection is dealt with under the Child, Family and Community Service Act RSBC 1996, c 46, and can influence your family law proceeding dramatically. 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 Indigenous authority.

Criminal law context

Where a family member has committed family violence, it is possible that they have also committed a criminal offence. Even where there is an existing family law case, criminal offences are prosecuted separately from family law cases in criminal court. This chapter provides an introduction to the ways that criminal law can affect cases involving family violence.

If a family member has assaulted or threatened another, this can lead to charges being laid under the Criminal Code. While charges are being prosecuted the accused person may be ordered by a judge to have no contact with the complainant (typically called no contact conditions). Other possible orders include not being allowed to have weapons or not being allowed to go to the complainant’s home. If the person is convicted of the crime, they will also receive a sentence which could include further court orders or even time in jail. The Criminal Code also provides for peace bonds. Peace bonds do not result in criminal convictions and punishments, but they 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 someone you dated, even if they do not meet the requirements for a protection order under the Family Law Act.

Civil law context

Where a family member has committed family violence, they may also have created a cause of action in civil law. A cause of action is the right to sue for something. 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 pursue your cause of action in a lawsuit for assault or battery.

Civil law is a broad area of law, and it includes the law of torts, better known as personal injury law. The law of torts can address physical assaults, but also covers a wide range of harmful actions including privacy violations and damage to property. The result of a successful tort claim is typically financial compensation.

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. This chapter also reviews some of the common challenges in tort cases.

Resources and links

Legislation

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by RISE Women's Legal Clinic, June 16, 2023.


Creativecommonssmall.png 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.
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