Family Violence

Introduction

In times gone by, domestic violence was often swept under the rug. Increasingly, our legal system not only seeks to address the harms that flow from such violence but also encourages legal professionals to be proactive in assessing the potential for it. The Family Law Act requires all family dispute resolution professionals (which includes, family justice counselors, parenting coordinators, lawyers, mediators and arbitrators) to watch out for warning signs of family violence in relationships. These professionals assess whether family violence might be present, and if it appears to be, to assess the extent to which the family violence may adversely affect:

• the safety of the party or a family member of that party, and
• the ability of the party to negotiate a fair agreement.

Family violence includes physical abuse, but also non-physical forms of abuse. 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 ruled that a broad range of actions constitute family violence. The following are just some examples of family violence:

• 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 actions which included sending demanding emails to the mother, 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.

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 Notice of Family Claim could include a claim for payment of damages resulting from the violence.

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 brief look at some child protection issues.

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.

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.

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.

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.

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.

If you are punched by someone, for example, that person's conduct may result in both:

1. a criminal prosecution, for a breach of the criminal law that makes it an offence to intentionally cause an injury to someone else, and
2. 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:

• fines,
• 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.

The Criminal Code

The Criminal Code is the main federal legislation on criminal law. The Criminal Code does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:

• common assault,
• assault causing bodily harm,
• aggravated assault,
• sexual assault,
• attempted murder,
• stalking (criminal harassment),
• making threats (uttering threats),
• keeping someone against their will (unlawful confinement), and
• kidnapping.

In order for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event.

After the police have conducted their investigation, the lead officer prepares a document called a Report to Crown Counsel and sends it to crown counsel, which is the lawyer for the government. Among other things, the Report to Crown Counsel describes witnesses' statements and recommends if charges should be laid. Crown counsel then decides whether there is enough evidence to lay charges. If they think there is enough evidence, crown counsel will approve the charges and the matter will be set for a hearing before a judge.

Information for abused persons

If you have suffered family violence, call the police; nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take him or her into custody. To find out more about what the police can do, you may wish to read Getting Help from the Police or RCMP and Surviving Relationship Violence and Abuse. If your partner is taken into custody, he or she will stay there until a judge is able to speak to him or her. Most of the time, your partner will be released from custody until the trial date following the brief hearing, and the release will be on specific terms and conditions set out in a document called a Recognizance or an Undertaking.

It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take action against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.

You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into custody, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:

• not go to your home, school or workplace,
• not go to your children's school or daycare,
• not come within a certain distance of your home,
• not contact you or the children, directly or indirectly, and
• fulfill any other condition that may be necessary for the safety of you and your children.

Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.

Breaching the recognizance

If your partner doesn't follow the terms of his or her recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.

Call VictimLink

Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with.

Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week.

You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.

Getting back together

You must speak to crown counsel if you want to get back together with your partner, or if you want to contact him or her, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you contact your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the recognizance, which might result in further criminal charges against your spouse.

Information for accused persons

It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.

If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you.

Typically, bail conditions include:

• not to have contact with your spouse, either directly or indirectly,
• not to go to your spouse's home, school or workplace, and
• to keep the peace and be of good behaviour.

Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.

The conditions which the judge requires will be written down in a document called a Recognizance or an Undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.

Lawyers and your bail hearing

You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.

Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the Legal Services Society to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with him or her.

The point of all this is that you will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.

Under certain circumstances, you may not be released from custody, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.

Getting back together

Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to "drop the charges." A couple of points need to be mentioned:

• Dropping the charges: Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot "drop the charges." Only the crown can do that.
• Communication with your spouse: Do not talk to the complainant, even if he or she contacts you, if your recognizance does not allow you to communicate with him or her. No matter who initiates the contact, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.
• Reconciliation: If the complainant truly wishes to get back together with you, he or she must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.

The consequences of criminal charges

Among other things, criminal charges relating to family violence can lead to:

• a stay of proceedings, when the crown doesn't take the charges to trial and no criminal conviction is entered,
• a discharge following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),
• a suspended sentence, with conditions, a period of probation and a criminal conviction,
• a peace bond under s. 810 of the Criminal Code, under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or
• a conviction punished by a fine, jail time, or both a fine and time in jail.

The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.

Tort law

Unlike criminal matters where the crown handles everything, a tort claim must be advanced and prosecuted 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 Notice of Family Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce, parenting arrangements, and so forth. However, 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.

Tort claims are not like criminal charges where the court can punish the wrong-doer with jail or a criminal record. The remedy the person who has suffered the family violence seeks is primarily restorative: he or she would be asking for an award of damages to make good the harm he or she suffered and its consequences. Damages are money payments and may be awarded for, among other things:

• pain and suffering resulting from the violence, sometimes just called general damages,
• 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 costs, 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.

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.

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 challenges of tort claims

This discussion is not meant to discourage persons who have suffered family violence from making tort claims for damages resulting from family violence; it's only meant to bring to readers' attentions the difficulties that can sometimes accompany tort claims relating to family violence. Notwithstanding 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.

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 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.

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.

Secondly, even if you're successful, your spouse must have some money or other assets from which he or she 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.

However, in the 1997 BC Supreme Court case of Megeval v. Megeval, 1997 CanLII 3721 (BCSC), where 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.

Thirdly, 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 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

A limitation period is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In assaults not involving family violence the limitation period is generally two years after the incident.

Under (s. 3 (1)) of the provincial Limitation Act there is no limitation period to claims based on sexual misconduct.

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)). It is unlikely that there is any limitation period that applies to violence between spouses or parents and children.

Awards

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:

• A.M. v. S.O. (2014) physical assault – open-handed blow to side of head; $20,000 for general damages.
• Bird v. Kohl, 2012 BCSC 1424; serious shoulder fracture, concussion, lacerations and scarring resulting from repeated strikes with a shovel handle; $75,000 for general damages, $15,000 for aggravated damages, $40,000 for lost wages and $25,000 for lost earning capacity;
• Constantini v. Constantini, 2013 ONSC 1626; verbal abuse during relationship, pre-meditated break-in and aggressive assault post-separation; no permanent disability but post-traumatic stress disorder; $15,000 for general and aggravated damages.
• D.G. v. R.M., 2012 SKQB 296; one instance of “horrific” sexual assault including striking, kicking and biting; $35,000 for general damages.
• Gould v. Sandau 2005 BCCA 190, Trial judge awarded $2,500 for assault causing broken bone in hand.
• Megeval v. Megeval, 1997 CanLII 3721 (BCSC): Assault causing permanent disability, $45,000 for the injury, $66,000 for lost wages and retraining, $2,500 for medical care and $5,000 in punitive damages.
• N.C. v. W.R.B. [1999] O.J. No. 3633 (Ont. S.C.J.); multiple instances of sexual, physical verbal and emotional abuse resulting in post-traumatic stress disorder; $65,000 for general damages, $25,000 for aggravated damages;
• Shaw v. Brunelle, 2012 ONSC 590; Serious fracture to wrist resulting from physical ejection from the home; $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 readers of this website 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.

The Family Law Act

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

Protection orders

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.

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:

1. whether the child might be exposed to family violence if a protection order isn't made; and,
2. 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 orders

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 him or her 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.

Changing protection orders

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

1. extend or shorten the period of time that the order is in effect,
2. vary the terms of the order, or
3. 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.

Potential impact on parenting arrangements

A finding by a court that family violence has occurred could impact on a court’s decision on what parenting arrangements and what allocation of parental responsibilities are in the best interests of a child. For example, a court could determine that the perpetrator of family violence should have no parenting time, supervised parenting time, or that all of the parental responsibilities go to the survivor of family violence. However, there have been other cases where having concluded that family violence has occurred, the court still determined that sharing parenting time equally between the parents is in the child’s best interests. 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. However, according to s. 37 of the Family Law Act, in the best interests analysis, a court must consider, amongst other things the following: a) The impact of any family violence on the child’s safety, security or well-being; b) Whether the family violence is directed toward the child or another family member; c) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; d) The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child; and e) Any civil or criminal proceeding relevant to the child’s safety, security or wellbeing. 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 present evidence that addresses these factors.

Conduct orders

The court can make a variety of special orders, called conduct orders, under Division 5 of Part 10 of the Family Law Act that may be used to address concerns relating to family violence. Conduct orders may only be made 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 his or her 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, 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.

Child protection issues

The provincial Ministry for Children and Family Development is authorized to protect children from neglect and harm under the provincial Child, Family and Community Service Act. Section 2 of the act sets out the guiding principles of the legislation:

This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:

(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;

(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;

(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;

(d) the child's views should be taken into account when decisions relating to a child are made;

(e) kinship ties and a child's attachment to the extended family should be preserved if possible;

(f) the cultural identity of aboriginal children should be preserved;

(g) decisions relating to children should be made and implemented in a timely manner.

Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the Child, Family and Community Service Act are the safety and well-being of the children.

Reporting children to the ministry

Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the Ministry for Children and Family Development.

Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.

The consequences of a report

If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:

• providing support services to the family in the home, including referrals to outside social agencies,
• supervising the child's care in the home, including random unannounced visits by the worker, or
• removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.

Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.

Information for reported parents

Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.

Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.

You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.

Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.

The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.

Information for parents making a report

Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.

Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.

Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.

Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.

What happens if a problem is found

If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings.

If the ministry has taken a child out of the care of his or her parents, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the Provincial Court (Child, Family and Community Service Act) Rules.

When your child is not removed

Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:

• the on-going supervision of the child,
• the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,
• prohibiting a person from contacting and interfering with the child,
• prohibiting a person from living with the child or entering the child's home,
• a term requiring the police to enforce the order, and
• the removal of the child if the parent fails to comply with the terms of a supervision order.

The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.

You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.

When your child is removed

If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.

At the presentation hearing, the court may make interim orders for the following:

• that the ministry have custody of your child,
• that the child be returned to you under the supervision of the ministry,
• that the child be returned to you, or
• that the child be placed in the care of someone other than yourself.

It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.

Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a "protection hearing" is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.

A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.

A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.

Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk.

At the protection hearing, the court may make orders for the following relief:

• that the child be returned to you under the supervision of the ministry for a period of up to six months,
• that the child be placed in someone else's custody for a specific period of time,
• that the child be placed in the custody of the ministry for a specific period of time, or
• that the child continue to be in the custody of the ministry.

Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.

At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.

To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet Parents' Rights, Kids' Rights..

Resources and links

Legislation

• Family Law Act
• Criminal Code
• Provincial Court (Child, Family and Community Service Act) Rules
• Negligence Act
• Controlled Drugs and Substances Act
• Youth Criminal Justice Act
• Limitation Act

Links

• Canadian Bar Association BC Branch: Script on applying for a peace bond and filing assault charges
• Community Safety and Crime Prevention Branch and Legal Services Society: Peace bonds and family law protection orders
• Clicklaw resources for abuse and family violence:
• Clicklaw resources for child protection
• Legal Services Society publications on abuse and family violence
• Family Law in British Columbia website information on child protection/removal

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Gayle Raphanel and Samantha Simpson, November 15, 2016.

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.