|link = [https://www.clicklaw.bc.ca/global/search?so=r&f=Abuse+%26+family+violence family violence issues]
}}
==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. If the terms of a protection orders are broken the person may be criminally charged for breaking a court order.
Part 10, Division 5 of the ''Act'' deals with conduct orders, which are a category of orders used to manage behaviours which might frustrate resolution of family matters. Conduct orders can also restrain a family member from communicating with, following, or going near another family member, but are enforced in family court.
Part 4, Division 1 of the ''Act'' deals with care of and time with children. Sections 37 and 38 outline the ways that family violence ''must'' be considered by courts when:
* assessing the ''best interests of a child''
* making an agreement or order about care of and time with children
===Am I a family member?===
In order to apply for certain categories of orders under the ''Family Law Act'', you must be defined as one. Section 1 of the ''Act'' says:
<blockquote><tt>"family member", with respect to a person, means</tt></blockquote>
<blockquote><blockquote><tt>(a) the person's spouse or former spouse,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person with whom the person is living, or has lived, in a marriage-like relationship,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a parent or guardian of the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a person who lives with, and is related to,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the person, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) a person referred to in any of paragraphs (a) to (c), or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the person's child,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>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)</tt></blockquote></blockquote>
If you read the definition of family member carefully, you will notice that people who are dating or who are in an intimate partner relationship but are not living together, or roommates who are living together but are not in an intimate partner relationship, are not defined as family members in the ''Act''. As a result, they cannot apply for protection orders under Part 9 or conduct orders under Part 10, Division 5, of the ''Family Law Act''. Persons in these categories should review the ''Criminal Code'' sections of this chapter for options that may be available to them.
===Definition of family violence===
The ''[[Family Law Act]]'' defines family violence broadly and, in addition to physical and sexual abuse, includes a variety of non-physical forms of abuse such as psychological abuse, harassment, coercion, threats and restricting a family member’s financial autonomy where these actions instill fear and/or cause harm to the family member experiencing violence. The definition extends to situations where children may be harmed through exposure to family violence. The definition also extends to situations where the person harmed or threatened to harm pets. There is no requirement that the violent family member have an intention to follow through on threats in order for those threats to be considered family violence. There is also no requirement for the violent family member to specifically intend to cause harm for their actions to be considered family violence.
Section 1 of the ''Act'' defines the term:
<blockquote><tt>“family violence” includes, with or without an intent to harm a family member,</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>
'''Important:''' If a child is directly or indirectly exposed to family violence, this is itself considered family violence under the legal definition in section 1. Direct exposure would include situations where a child is the target of family violence and indirect exposure captures situations where the child is impacted by family violence, for example by witnessing it.
===Some examples of 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:
* ''[https://canlii.ca/t/jpbbg Barendregt v Grebliunas]'', 2022 SCC 22: In this case the mother had suffered due to the father’s controlling nature and overbearing personality. The father continued his hostile behavior during the trial, adding a nude selfie of the mother in an affidavit purely to humiliate her. The Supreme Court of Canada agreed with the trial judge's findings and allowed the mother to relocate, emphasizing that domestic abuse and family violence impacts the children and it is appropriate to negatively judge the perpetrator's parenting ability based on their behaviour.
* ''[https://canlii.ca/t/jxc12 K.S.P. v. B.R.J.]'', 2023 BCSC 886: The court ruled that throwing an object at a person during an argument constitutes family violence.
* ''[https://canlii.ca/t/jsbnv K.L. v. A.P.]'', 2022 BCPC 214: The court declared that the father’s pattern of harassing, degrading and aggressive messages, secret video recording, and conflicts requiring police intervention was family violence.
* ''[https://canlii.ca/t/jrfn1 M.S.R. v. D.M.R.]'', 2022 BCSC 1398: By alienating the child from the mother, the father had engaged in family violence. The court noted that “the harm [was] ongoing and [did] represent a pattern of controlling behaviour directed at the child.”
* ''[https://canlii.ca/t/js7ff K.S.P. v. J.T.P.]'', 2022 BCSC 1727: The court determined it would be abusive to allow the husband to challenge findings of domestic violence already made in three separate hearing, even though there were pending appeals on two orders.
* ''[https://canlii.ca/t/jlw7z K.R.L. v. N.P.]'', 2021 BCPC 324: The father's “hateful, cruel and vulgar” text messages to the mother were "staggeringly voluminous and unrelenting” and found to be psychologically and emotionally abusive.
* ''[https://canlii.ca/t/j7zz6 T.M.H. v. P.J.H.]'', 2020 BCSC 804: The father committed family violence when used parenting time as a means to bully and harass the mother. He violated the boundaries of communication and sent messages to the children that were “manipulative, emotionally abusive and a breach of trust”.
* ''[https://canlii.ca/t/jc6bg C.M.C. v. J.C.P.]'', 2020 BCSC 2005: The father’s text messages, including statements that the mother “could not get ‘any dumber’” and was a liar” and suggesting that the mother's parenting was putting his and the child's life in danger, were emotionally abusive. The father’s communications caused stress to the child and emotional harm.
* ''[https://canlii.ca/t/j84wb D.A.B. v. C.A.S.]'', 2020 BCSC 807: Disparaging and inappropriate comments, including comment made in front of the children, constituted family violence.
* ''[https://canlii.ca/t/j1tsp T.C. v. K.C.]'', 2019 BCSC 1299: The court held that it was a "significant violation" of "personal autonomy" for the father to lift up and remove the mother from their bedroom when she refused to leave on her own. It amounted to family violence.
* ''[https://canlii.ca/t/hs0jh C.A.L. v. D.E.L.]'', 2018 BCSC 772: In an acrimonious separation, the past conduct and the current circumstances are all relevant. When analyzing the risk of family violence and the factors in s. 184 of the ''Family Law Act'', judges must take a “broad and contextual perspective” by looking at the parties' history, communication patterns, and surrounding circumstances.
* ''[https://canlii.ca/t/hrwnx Primeau v. L’Heureux]'', 2018 BCSC 740: The court found a pattern of coercive and controlling behaviour by the father. He deliberately jeopardized the mother's livelihood by speaking ill of her to clients, caused her a loss of income (while at the same time not paying court-ordered child support reliably), made baseless complaints against her to the RCMP, failed to communicate reasonably, and used the child as a "pawn" in order to get back at the mother.
* ''[http://canlii.ca/t/hwqqr S.A.H. v. J.J.G.V.]'', 2018 BCSC 2278: The father's constant assertion that the mother's and the children's actions were sinful and evil amounted to "spiritual abuse", which fits into the broad definition of family violence in the ''Family Law Act''. By "painting himself with truth and goodness and the claimant with lies and evil" he unintentionally tormented the children by forcing them to side with the "alleged evil in order to be with the mother they love".
* ''[http://canlii.ca/t/hvw3v N.M.A. v. K.D.L.]'', 2018 BCSC 1879: Derogatory and abusive language in emails can go beyond mere argument, and turn into emotional abuse and family violence. The father went beyond mere bickering and unpleasantness, and his repetitive, unrestrained and vulgar language, especially over an extended period of time, became emotional abuse and family violence.
* ''[http://canlii.ca/t/hxcc8 S.A.W. v. P.J.W.]'', 2018 BCPC 376: The court found a distinction between "mere arguments and insulting discourse", or even "nasty or spiteful arguments", and behaviour that is so "belittling, demeaning, and insulting" (and repeated frequently in front of a child), that it was at a different level and fit the broad definition of family violence, although likely at the lower end of the scale.
* ''[https://canlii.ca/t/h443q J.S.R. v. P.K.R.]'', 2017 BCSC 928: The father’s threats to kill himself, which were delivered in such a manner that they became known to the children, were found to be a form of psychological abuse and family violence.
* ''[http://canlii.ca/t/gx9s1 K.D.R. v. J.N.D.]'', 2017 BCSC 182: A parent's derogatory and demeaning comments about the other parent, on occasion and in the child’s presence, “clearly amount to family violence” since they disturbed the child and caused the child emotional harm.
* ''[https://canlii.ca/t/h3s5q C.L.M. v. M.J.S.]'', 2017 BCSC 799: The mother’s litigation conduct was a form of emotional abuse and harassment that constituted family violence. This included persistent failure to cooperate with litigation, a lack of cooperation with sale of the family home, failure to follow court orders, failure to attend court, failure to respond to correspondence or provide full financial disclosure, and general obstructive behaviour.
* ''[http://canlii.ca/t/fxjb5 M.W.B. v. A.R.B.]'', 2013 BCSC 885: The mother was found to have committed family violence for repeatedly interfering with the father’s access to the children and refusing to settle orders drafted by lawyers. These actions prolonged and intensified the litigation.
* ''[http://canlii.ca/t/gdt2h Hokhold v. Gerbrandt]'', 2014 BCSC 1875: The father's emotionally abusive conduct, which included sending excessive and demanding emails, failing to pay support, and threatening to close his dental practice, constituted family violence.
* ''[http://canlii.ca/t/gh679 C.R. v. A.M.]'', 2015 BCPC 76: The father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” was family violence.
* ''[http://canlii.ca/t/g7233 L.A.R. v. E.J.R.]'', 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 C.F. v. D.V.]'', 2015 BCPC 309: Family violence includes breaking the mother’s cellphone and a picture on the wall, then kicking a hole in the bathroom door.
* ''[https://canlii.ca/t/g1nl1 J.C.P. v. J.B.]'', 2013 BCPC 297: A deliberate failure to pay child support, where it was a “calculated and deliberate act designed to inflict psychological and emotional harm and to control [the other party’s] behaviour”, is family violence.
A lot depends on the specific facts of the case, however, and evidence is very important. In ''[http://canlii.ca/t/g1rsc J.R.E. 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. And courts take a dim view of family violence claims if they are brought with other motivations. In ''[http://canlii.ca/t/g2zjp L.S. v. G.S.]'', 2014 BCSC 187, the court said:
<blockquote>"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." </blockquote>
===Using the ''Family Law Act'' for protection===
The ''[[Family Law Act]]'' offers a number of different remedies that may be helpful in protecting family members from family violence.
====Protection orders under Part 9====
{{LSSbadge
|resourcetype = a guide that tells you how to
|link = [https://family.legalaid.bc.ca/abuse-family-violence/protecting-yourself-your-family/apply-family-law-protection-order-without apply for a protection order]
}}Protection orders are the strongest type of restraining order that a family member can apply for under the ''Family Law Act'' to protect themselves from another family member. Under section 183(1), the ''at-risk family member'', someone on their behalf, or the court itself can ask for a protection order. A claim for a protection order can be asked for on its own, and doesn't need to be made with any other claims under the ''Act''.
To find out more about protection orders, you may wish to read the booklet “[https://www.clicklaw.bc.ca/resource/1319 For Your Protection: Peace Bonds and Family Law Protection Orders]”, or read Legal Aid BC's Family Law website's information page on "[https://www.clicklaw.bc.ca/resource/4657 Protecting yourself & your family]", under the section "Family law protection orders".
To grant a protection order, the court must find that:
# the person asking for protection is an ''at-risk family member'', and
# that family violence is likely to occur by a family member against the at-risk family member.
''At-risk family member'' is defined in section 182:
<blockquote><tt>"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</tt></blockquote>
====Making protection orders====
When the court is asked to make a protection order, it must consider certain risk factors set out at section 184(1):
<blockquote><tt>(a) any history of family violence by the family member against whom the order is to be made;</tt></blockquote>
<blockquote><tt>(b) whether any family violence is repetitive or escalating;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(f) the at-risk family member's perception of risks to his or her own safety and security;</tt></blockquote>
<blockquote><tt>(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.</tt></blockquote>
Essentially, the court is required to look at the family violence in the overall context of the family members' relationship, and the history as well as the present circumstances of their relationship. When asking for a protection order, a family member experiencing violence will need to prepare evidence of the history of violence in the relationship, taking into consideration the above factors in section 184(1).
Protection orders may still be available even in the following circumstances (section 184(4) of the ''Act''):
* The at-risk family member had a previous protection order and the family member it was against had complied with the previous protection order.
* The family member against whom the order is to be made is temporarily absent from the residence.
* The at-risk family member is temporarily residing in an emergency shelter, transition house, or other safe place with a confidential address.
* There are criminal charges (or the possibility of charges) against the family member for the same incidents of family violence that the protection order is in response to.
* The at-risk family member has a history of going back to their relationship with the other family member after previous family violence incidents.
* A ''conduct order'' (an order restricting communications) was previously made under section 225 [orders restricting communications] has been made for the at-risk family member against the other family member.
In determining whether to make a protection order where the family member is a child, section 185 says 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.
Here are some circumstances where courts have ordered protection orders:
* ''[https://canlii.ca/t/jlxnq Raj v. Raj]'', 2022 BCSC 110: The court found considerable evidence that the father had ongoing alcohol abuse and anger issues that led to mental, emotional and physical abuse, and of recent actions that showed a risk to the mother. The protection order was granted to protect the mother and the youngest child who had been exposed to direct and indirect violence and was not in a position to protect herself given her age and vulnerability.
* ''[https://canlii.ca/t/jlw7z K.R.L. v. N.P.]'', 2021 BCPC 324: The father was prohibited from communicating with the mother after repeated threats and abusive communications. The court also prohibited the father, for a shorter period of time, from communicating with the child. Even if the child was not an at-risk family member, the order needed to name the child as a “specified person” in order to protect the mother.
* ''[https://canlii.ca/t/hz6fq M.C.C. v. M.C.R.C.]''¸ 2019 BCSC 380: The claimant showed a pattern of coercive and controlling behaviour directed against her and to some extent the children. She was successful in getting a without-notice protection order. She had not been allowed to go the mall or hotels, was not permitted to attend important family events, and was not allowed to have her own credit card, email account, or Facebook account. The respondent had ensured that all family electronics were connected to his Apple ID and iCloud account and he tracked her movements using an iPad. The court ordered that the claimant should have exclusive occupancy of the family home and issued a ''conduct order'' restricting the respondents communications with the children.
* ''[https://canlii.ca/t/hvw3v N.M.A. v. K.D.L.]'', 2018 BCSC 1879: Protection order based on derogatory and abusive communications over an extended period of time, which constituted emotional abuse. The court declined to make the protection order reciprocal, and made the order against the respondent only.
* ''[https://canlii.ca/t/ggb63 Prasad v. Prasad]'', 2015 BCSC 207: Given the likelihood that the husband would react violently if he was not favoured in the division of assets, and that he would not agree to stay away from her, the court issued a permanent, non-expiring protection order. The husband was prohibited from applying to vary or amend the protection order for three years. There was a history of physical, verbal, and emotional abuse. Note that in ''[https://canlii.ca/t/jndng Williams v. Williams]'', 2022 BCSC 517 the court said permanent protection orders are a very rare remedy “usually made to address an ongoing threat”.
* ''[https://canlii.ca/t/gkfjn S.M. v. R.M.]'', 2015 BCSC 1344: The court stated “judges hearing applications of this kind must approach the issue from a broad and contextual perspective, taking into account a variety of factors that frame the risk analysis in determining whether family violence is likely to occur. The inquiry is future oriented but it takes its shape from past conduct and present circumstances that inform the assessment of risk.”
* ''[https://canlii.ca/t/g2ljl Dawson v. Dawson]'', 2014 BCSC 44: The judge considered the severe nature of an earlier assault and the husband's ongoing anger and hostility. These two as factors convinced the judge that there was a likelihood of further family violence. This case shows that further family violence may still be ''likely'' even if only one incident occurred in the past. When deciding if family violence is "likely" under section 183(2)(a), the court must weigh the potential severity of the harm from future violence.
This said, it is not enough for the person seeking a protection order to say that they are afraid or at risk of violence. Evidence of one of the section 184 risk factors must be presented to allow the court to decide if a protection order is suitable (''[http://canlii.ca/t/g7rnf Whitelock v. Whitelock]'', 2014 BCSC 1184). The court may also consider how much time has passed since the family violence occurred. If the circumstances that led to family violence are no longer present, a past act of violence, despite ongoing fear from the victim, may not be sufficient grounds for granting a protection order. This emphasizes the court's focus on current risk and the likelihood of future violence when determining the need for a protection order. In ''[https://canlii.ca/t/jpj3d Yusufi v Yusufi]'', 2022 BCSC 900, the parties were in a 17-year marriage with no children. The claimant recounted a history of both physical and psychological abuse. The court found that the violence was dated, with the last incident occurring two years prior to separation, and there had been no incidents since separation despite litigation. The parties regularly attended the same place of worship without incident. A protection order was not ordered.
'''Important'''
* A single incident of family violence may be enough to get a protection order.
* A protection order can be granted even if some time has passed since the last incident of family violence, but the court will consider if the risk of family violence is still present. Delaying can make it more difficult to get a protection order.
* A family member's own, subjective perception that they are at risk of harm is one factor that the court will consider.
====Protection order terms====
The available protection order terms are listed at section 183(3). These include the following:
*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 against whom the order is sought 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 section 183(3)(e), an at-risk family member can ask for any other terms that may be necessary to protect them or implement the protection order. Examples include requiring the family member whom the order is against to carry a copy of the order on their person when their outside their place of residence, or requiring them to go to a police station to surrender any weapons that they're banned from possessing. Protection orders remain in place for one year, unless the order specifies length of time. In some very serious cases, protection orders are ordered indefinitely. These are sometimes called ''non-expiring'' or ''permanent'' protection orders.
If there is an ''[Family Law Act]'' order that allows a family member to have contact with the children, but a protection order is made that prohibits communication with the children, the conflicting terms of the older order are suspended while the protection order is in effect. This temporary suspension of specific, conflicting terms of a ''Family Law Act'' order even applies in the situation where a the other court order is from another Canadian jurisdiction. So long as the other court order from another jurisdiction is "similar in nature" to a protection order in BC, the conflicting parts of the ''Family Law Act'' order will be suspended. This includes a ''Criminal Code'' ''no-contact'' or ''no-communication'' order. Keep in mind that the suspension of the ''Family Law Act'' order is limited only to conflicts or inconsistencies between it and the protection order, and only while the protection order is in effect.
====Protection orders "without notice"====
Under section 186, a family member experiencing violence can ask the judge to hear their application without the other person being informed of the application in advance. This is called a ''without notice'' application. Without notice applications are suitable when there is a risk of further or escalating violence, either because the current situation is urgent, or because a triggering event such as serving someone with court documents could escalate the risk of violence and harm.
Once a protection order has been made ''without notice'', the family member experiencing violence will have to serve the order on the other family member, along with all of the application materials, any affidavit evidence, and the orders made by the court.
When granting protection orders without notice, the court may decide to grant one for a shorter period of time. The court may also require that the person requesting the protection order give their materials to the other party and return to court so that they have an opportunity to explain why the protection order is not warranted. When a protection order has been made without notice, the opposing party can ask the court to cancel or change the 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 protection order is in effect,
*vary the terms of the order, or
*end the order.
When a protection order is changed, the existing protection order will be terminated and replaced, so it is important to make sure that the court is aware of any terms in the original order that need to be carried over to the new order.
====Enforcing protection orders====
If the family member against whom the protection order is made breaches one of its provisions, it is a criminal offence. This makes protection orders unique compared to regular orders under the ''[Family Law Act]''. Instead of routinely being enforced to go to family court, protection orders can be enforced in criminal court. Enforcement in criminal court will occur if police charge the family member with the offense of disobeying a court order under section 127 of the ''Criminal Code''. Once a charge is laid under section 127, it will proceed through the regular criminal process, with the accused person having the opportunity to plead guilty or not guilty to the charge, and in the case of a not guilty plea, go to trial.
===Family violence and the best interests of the child analysis===
The only thing that matters when deciding guardianship, parenting arrangements, or contact with a child, is the ''best interests of the child''. All of a child's needs and circumstances must be considered when determining their best interests, but section 37(2) of the ''Family Law Act'' lists ten specific factors. Sections 37(2)(g) and (h) are specific to family violence in the context of a child's best interests:
<blockquote><tt>37(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(g) 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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) 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;</tt></blockquote></blockquote>
Section 38 of the ''Act'' gives more specific guidance.
<blockquote><tt>38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the nature and seriousness of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) how recently the family violence occurred;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the frequency of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) whether the family violence was directed toward the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) whether the child was exposed to family violence that was not directed toward the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) any other relevant matter.</tt></blockquote></blockquote>
Therefore it is important to present any evidence regarding family violence to the court when asking for an order for guardianship, parenting arrangements, or contact with a child. Ensure the judge has all of the evidence that they must consider in making these very important decisions. Some orders that can be asked for include that the person responsible for family violence have no parenting time, supervised parenting time, parenting time in a public place, video parenting time only, or no parenting responsibilities.
===Conduct orders===
Conduct orders under Part 10, Division 5 of the ''[[Family Law Act]]'' give the court some tools to help parties manage the kinds of conflicts and problematic behaviours that can prevent them from resolving their family law issues. In some cases, conduct orders are used when family violence is not so severe as to require a protection order.
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 each other.
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 section 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 make conduct orders for one of four purposes set out at section 222:
<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) to prevent misuse of the court process;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) to facilitate arrangements pending final determination of a family law dispute.</tt></blockquote></blockquote>
Conduct orders can be used to address a wider range of issues than protection orders, which are specific to family violence. A conduct order could, for example, stop a party from filing repetitive applications that misuse the court process, or compel a party to attend a counselling program. The following are some examples of conduct 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 participate in family dispute resolution
*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,
*requiring a person to report to the court or to another person, like a counsellor or therapist, and
*any other order the court deems necessary to fulfill one or more of the purpose(s) in section 222
====Conduct orders restricting communications====
Section 225 of the ''[Family Law Act]'' allows the court to make orders restricting or setting conditions on the parties' communications, including when or how communication should take place.
If the family violence does not warrant a protection order, a section 225 conduct order can be made instead. Like a protection order, a conduct order can prevent a family member from communicating with or contacting another family member. Breaching a conduct order is not a criminal office however, while breaching a protection order is. Conduct orders are enforced in family court, not criminal court.
It is also worth considering that while protection orders are usually time limited, conduct orders normally continue until another a different court order is made. So in some cases conduct orders can provide a longer period of relief.
'''Important'''
Under section 225, if a court is considering putting restrictions or conditions on communications between parties, they must consider whether a protection order would be more appropriate instead.
If a conduct order is made restricting communication, and the person bound by the conduct order breaches it, section 228(2) states that the court must consider whether it would be appropriate to make a protection order instead.
====Enforcing conduct orders====
As mentioned, conduct orders are enforced in family court, not criminal court.
Conduct orders can be enforced in a number of ways under section 228, including by requiring the person breaching the order to pay up to $5,000, either to the court or to the opposing party. Under section 231, a court may even order that a person be jailed for no more than 30 days. Jail time is an extremely rare remedy and will only be ordered if 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.
* '''Supervised parenting time and contact:''' Under sections 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 section 218, the court may impose terms and conditions on any order it makes. Where family violence is an issue, appropriate terms and conditions might include exchanging the children in a public place, placing restrictions on how the parties are allowed to interact when the children are exchanged, restricting a family member to video or telephone parenting time or contact only, requiring that parenting time or contact only happen in a general or specific public place, or they might say that a party's parenting time or contact will not happen if the party is impaired by drugs or alcohol.
* '''Denial of parenting time:''' Sections 61 and 62 address what happens if one person or guardian denies parenting time or contact set out in a legal agreement or court order to another person or guardian.
** Under section 61, the person denied parenting time or contact can apply to the court within 12 months for various remedies such as make-up time, requiring a party or the child to attend counselling or other programs, requiring attendance at family dispute resolution, requiring a fine be paid, or other remedies.
** Under section 62, the court may decide that the denial was not wrongful if the guardian reasonably believed that: a) the child might suffer family violence if the parenting time or contact with the child were exercised; or b) the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised. Objective evidence should be provided to the court that supports the reasonableness of the guardian’s belief in these circumstances. There are also other circumstances set out in section 62 under which a court may decide that the denial was not wrongful.
** '''Important:''' If a person is concerned that a child may suffer family violence if parenting time or contact is exercised, then they should make an application to court as soon as possible, consider the bests interests of the child under section 37 and 38 of the Act, and try to change the underlying court order or agreement on parenting time or contact.
* '''Non-removal orders:''' Under section 64 of the Act, if there is a concern that a person may remove a child from British Columbia and is unlikely to return, a court may make an order that a person not remove a child from a specified geographical area. This can range from a city to the province of British Columbia, for example. This type of order does not apply when a guardian wishes to relocate with a child with notice to the other guardian.
* '''Exclusive occupation of the family residence:''' Under section 90, the court may make temporary orders, and grant one spouse exclusive occupancy of the family residence. This isn't a restraining order, and it does not prohibit the other party from entering the home, but the person with the exclusive occupation order is allowed to live there and the other person is not.
==Resources and Links==