Family Violence in the Family Law Context

Family Violence in the Family Law Context

Family Violence:

Pursuant to section 8 of the Family Law Act, all family dispute resolution professionals (family lawyers, mediators, arbitrators, parenting coordinators, etc)  must assess whether family violence is present, and the extent to which family violence may adversely affect the safety of the party or family member of the party, and the ability of the parties to negotiate a fair agreement (https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec8). 

In the Family Law Act, family violence is defined as: 

  1. 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,
  2. sexual abuse of a family member,
  3. attempts to physically or sexually abuse a family member,
  4. psychological or emotional abuse of a family member, including
    • intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
    • unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,
    • stalking or following of the family member, and
    • intentional damage to property, and
  5. in the case of a child, direct or indirect exposure to family violence. 

(https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec1)

The presence of family violence, is one of the factors that the court must consider in determining the best interest of the child. When making orders regarding children, the court must only consider the best interest of the children, with specific factors set out at section 38 of the FLA, including: 

  1. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  2. 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;
  3. 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;

(https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html?autocompleteStr=family%20&autocompletePos=2#sec37)

When family violence is present the court must also consider the following factors

  1. the nature and seriousness of the family violence;
  1. how recently the family violence occurred;
  1. the frequency of the family violence;
  1. whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
  1. whether the family violence was directed toward the child;
  1. whether the child was exposed to family violence that was not directed toward the child;
  1. the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence;
  1. any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
  1. any other relevant matter.

(https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html?autocompleteStr=family%20&autocompletePos=2#sec38)

The term family violence includes domestic violence, stalking, online stalking, intimate partner violence and child abuse. 

Family violence exists along a spectrum, and can take many forms. It can included insulting belittling behaviour, financial control, isolating the spouse, destruction of property, physical and sexual abuse, up to and including murder. 

Courts in BC have taken an expansive view of family violence, including aggressive litigation, misusing the court process, lack of financial disclosure, and intentionally decreasing the value of family property. For Example: 

In J.C.P. v. J.B., 2013 BCPC 297 http://canlii.ca/t/g1nl1 Judge Merrick found that the failure to pay child support was family violence: 

With respect to [the father’s] failure to pay child support on time and in the full amount, I am satisfied that this failure, combined with his other actions and words, constitutes family violence.  I am satisfied that his failure to pay was a calculated and deliberate act designed to inflict psychological and emotional harm and to control [the mother’s] behaviour.  I am satisfied that [the father’s] goal was to destabilize [the mother’s] parenting of [the child].

In M.W.M. v. J.D.K., 2015 BCPC 315 http://canlii.ca/t/gm3cb the court found that excessive texting constituted family violence. 

In K. L. L. v D. J., 2014 BCPC 85 http://canlii.ca/t/g6x7q found derogatory language was family violence. 

In Maher v. Maher 2018 BCSC 275 http://canlii.ca/t/hql7s, violence towards the family pet was a factor to consider in assessing family violence. Master Muir stated: 

“The [husband’s] coercive and controlling behaviour, compounded by his anger and abuse of the family dog, establishes psychological or emotional abuse that constituted prolonged and escalating family violence that continued until separation and beyond.”

In Prasad v. Prasad, 2015 BCSC 207, http://canlii.ca/t/ggb63 the court found the husband’s history of violence, including threating the hit the wife’s lawyer, constituted family violence. 

In Fyfe v. Fyfe 2014 BCSC 1999 http://canlii.ca/t/gf303 email messages to third parties was considered family violence. 

In M.W.B. v. A.R.B., 2013 BCSC 885, http://canlii.ca/t/fxjb5 the court found one party’s behaviour in the litigation was family violence. Justice Brown stated: “I find the [wife’s] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence.” 

(For more information see: https://canliiconnects.org/en/commentaries/64799)

Power and Control Wheel | The National Domestic Violence Hotline

Generally, there are four broad patters of family violence:

  1. Coercive Controlling Violence 
  2. Violent Resistance
  3. Situational Couple Violence 
  4.  Separation Instigated Violence 

Determining what type of physical violence is present in the family helps determine how to manage the risk of escalating family violence. 

  1. Coercive Controlling Violence: 

The major forms of control that constitute Coercive Controlling Violence are intimidation; emotional abuse; isolation; minimizing, denying, and blaming; use of children; asserting male privilege; economic abuse; and coercion and threats. 

Coercive Controlling Violence is probably the type of family violence most people think of when they hear the term “domestic violence” or “battered women.”

Coercive Controlling Violence often occurs over a long period of time, and can escalate seriously. 

The vast majority of Coercive Controlling Violence is committed by men against women. 

A history of Coercive Controlling Violence is extremely concerning in the context of the breakdown of a relationship, as it can lead to very significant violence up to and including murder. Coercive Controlling Violence can escalate significantly post-separation as the abusing partner reacts to a loss of control over the abused partner. 

  1. Violent Resistance

Violent Resistance is usually in response to Coercive Controlling Violence, when an abused family member violently defends themselves. Often Violent Resistance escalates the level of Coercive Controlling Violence. 

  1. Situational Couple Violence 

Situational Couple Violence refers to incidents of violence which arise from a situation or argument which escalates into physical violence. For example an argument over infidelity, whether perceived or actual, which leads to pushing or other physical violence. Often one both partners have a reduced ability to manger their anger, which can be exasperated by alcohol or other drug abuse.

Generally Situation Couple Violence is usually less sever and do not escalate in intensity, and usually does not continue post-separation. It is the most common form of and is perpetrated by men and women in relatively equal proportions. 

  1. Separation Instigated Violence

Separation Instigated Violence occurs when there is no history of violence in the relationship, and occurs because of the separation. Separation Instigated Violence is usually perpetrated by the partner who being left, especially if they were not expecting the separation. The first six months after separation is the period when Separation Instigated Violence is most likely to occur, although it can occur years after separation.  Generally Separation Instigated Violence is not reoccurring, and can be addressed by Protection Orders or Peace Bonds, discussed below. 

CONTINUUM OF VIOLENCE IN RELATIONSHIPS - "Julie Loves Hair"SPI

If you or someone you know is experiencing family violence, court or other intervention may be necessary to protect that person or their children.  Exposing children to family violence can lead to significant long term harm to the children. Trust your instincts; a person’s perception of possible risk of violence from their partner is the best indicator of the possibility of serious harm occurring. 

  1. Criminal:

Most family violence is also a criminal act, such as assault (which can include threats of violence), uttering threats, criminal harassment, etc. 

In addition to criminal charges, the police can apply for a Peace Bond pursuant to s. 810 of the criminal code (https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#Sureties_to_Keep_the_Peace__3696094). 

 A Peace Bond is not a criminal charge, but is an order that a judge can impose on a person on the application of the Crown, which would impose restrictions on a party to have direct or indirect contact with a person who has a reasonable fear of physical injury of destruction of property by the person against whom the Peace Bond is made. Breaching the conditions of a Peace Bond is a criminal offence. 

  1. Child Protection:

If there is risk of harm to children, the MCFD can intervene to protect the children. The MCFD could implement a Safety Plan with conditions such as not allowing the abusive parent to have unsupervised contact with the children. The MCFD can also apply to court for Supervisions Order, and can remove the children from the parents if there is risk of harm.  

  1. Family Law Act Protection Orders:  

Pursuant to s. 183 of the Family Law Act the court can make protection orders if the court is satisfied that family violence is likely to occur and the other family member is an at-risk family member. An at risk family member is a person who is at risk, or is likely at risk from family violence carried out by a family member. 

A protection order may include any terms or conditions that the court considers necessary to protect the safety and security of the at risk family member, and generally includes terms prohibiting direct or indirect contact with the at risk family member, prohibiting attending the home of the at risk family member, prohibiting possessing firearms, and authorizing a police officer to remove the family member from the family home. 

Pursuant to section 91 of the Family Law Act the court may make an order giving one spouse exclusive occupancy of the family home, and family violence is a factor to consider in making that order (See: J.R.E. v. 07—–8 B.C. Ltd., 2013 BCSC 2038 http://canlii.ca/t/g1rsc at paragraph 10). 

  1. Exclusive Occupation and Emergency Protection Orders under the Family Homes on Reserve and Matrimonial Interests Rights Act:

As the federal government has jurisdiction over reserve lands, the Family Law Act does not apply to real property on reserve. Therefore orders for exclusive occupancy pursuant to s. 91 of the Family Law Act are not available (although section 183 Protection Orders are available). Exclusive occupancy orders a are available pursuant to section 21 of the Family Homes on Reserve and Matrimonial Interests Rights Act (https://www.canlii.org/en/ca/laws/stat/sc-2013-c-20/latest/sc-2013-c-20.html#Exclusive_Occupation_Order__49831). 

The Family Homes on Reserve and Matrimonial Interests Rights Act has provisions which would allow for Emergency Protection Orders, but they can only be granted by a designated judge, and the BC government has chosen not to designate a judge to hear such applications, and therefor that option is not available in BC.  

If you need more information or require assistance in obtaining a protection order, contact our office for assistance. 

Additional Resources: 

BWSS
About | Open Doors Project

https://bcsth.ca/

ShelterSafe Logo

https://www.sheltersafe.ca/

RISE WOMEN'S LEGAL CENTRE

https://womenslegalcentre.ca/

Ending Violence Association of BC
BC Society For Male Survivors Of Sexual Abuse

http://bc-malesurvivors.com/

BC Housing logo

https://www.bchousing.org/housing-assistance/women-fleeing-violence/womens-transition-housing-supports

https://lssonline.lss.bc.ca/public/images/customization/Common/lssonline_access_general_ui/logo_image_en.png

https://pubsdb.lss.bc.ca/pdfs/pubs/Is-Your-Client-Safe-eng.pdf

Clicklaw Wikibooks | Courthouse Libraries BC

https://wiki.clicklaw.bc.ca/index.php/Family_Violence