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|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 = [http://www.clicklaw.bc.ca/global/search?f=Abuse+%26+family+violence family violence issues] | ||
} | } | ||
==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 assess whether family violence may be present, and if it appears that family violence is present, to assess the extent to which the family violence may adversely affect (a0 the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement. Family violence is defined to include: | |||
“blockquote><tt>"family violence" includes</tt></blockquote> | |||
<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> | |||
<blockquote><blockquote><tt>(b) sexual abuse of a family member,</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) attempts to physically or sexually abuse a family member,</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) psychological or emotional abuse of a family member, including</tt></blockquote></blockquote> | |||
<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> | |||
Where domestic violence exists, both family law and criminal law can be involved. It may also mean that a family law notice of claim could include a claim for payment of damages resulting from the violence. | |||
Some relationships are scarred by violence and abuse, sometimes toward a spouse and sometimes toward a child. This may mean that both family law and criminal law are involved when a relationship ends. It may also mean that a family law court proceeding will include a claim for damages as a result of 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 <span class="noglossary">brief</span> 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. | |||
Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the criminal law ( | 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: | If you are punched by someone, for example, that person's conduct may result in both: | ||
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In <span class="noglossary">order</span> 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. | In <span class="noglossary">order</span> 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 sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks | After the police have conducted their investigation, the lead officer sends the lawyer for the government, ''crown counsel'', a document called a Report to Crown Counsel which, among other things, describes the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. Crown counsel then decides whether there is enough evidence to lay charges. If the crown counsel reviewing the police file thinks there is enough evidence, the crown counsel will approve the charges and the matter will be set for a hearing before a judge. | ||
===Information for abused persons=== | ===Information for abused persons=== | ||
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===Limitation periods=== | ===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. | 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 ''[http://canlii.ca/t/521sn 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)). | |||
===Awards=== | ===Awards=== | ||
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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. | 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==== | ====Making protection orders==== | ||
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#whether a protection order should also be made for the protection of the child. | #whether a protection order should also be made for the protection of the child. | ||
Recent court decisions like ''[http://canlii.ca/t/gf0ng Hughes v. Erickson]'', 2014 BCSC 1952 show that a protection order will not be made without evidence that family violence will likely occur. ''[http://canlii.ca/t/gf0ng 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 ''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184. | |||
====Protection orders==== | ====Protection orders==== | ||
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{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Gayle Raphanel]] and [[Samantha Simpson]], May 6, 2015}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} |
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