British Colombia’s Family Law Act

by Julia Fletcher

In 1978, children happily played outside until the street lights went on … back in the good old days …. and in those good old days, “domestic abuse” was considered to be a private matter – and that wasn’t good.

Four decades have passed and many long for the days of playing outside until the lights go on. Soon, many individuals who earn their bread and butter in “lucrative” child custody cases involving abuse will long for the days when there was no protection for victims of family violence – back in the days when “domestic abuse” was considered to be a private matter.

That day will eventually come in every country as soon as legislators, like the legislators in British Colombia, notice that family court laws from the 1970s are “out of date”.  

When their new Family Law Act goes into effect on March 18, 2013, Canadians in British Colombia will be protected from all violence and abuse – no matter who commits the crimes. As long as there are no hidden loopholes anywhere to undo the good this legislation does, all crimes committed will be handled as the crimes they are. All crimes committed – by one’s neighbors, co-workers, strangers or family members – will be considered to be crimes and handled as such.  

Is this a breach of boundaries between public and private matters or long overdue  protection from all harm?

Those who truly mean no harm to their families should welcome the new laws as formal guidelines for spouses committed to each other’s well-being and for parents who truly love their children. Most will be happy to be on their best behavior with those they love the most.

However, those who purposely intend to do serious harm to family members might need a “heads up”: 

  • The days of lackadaisical family court rules are over.  
  • The “friendly parent” concept isn’t going to work anymore for those who are currently able to punish parents who dare to attempt to protect their children from intra-familial crimes.
  • Family court judges in British Colombia will no longer minimize harm done to those who have been pushed down a flight of stairs.
  • Family court judges will soon be doing more to help children who have seen a parent tossed across the room or slammed into a wall. 
  • Attorneys representing abusive parents will no longer be able to use “parental alienation syndrome” to prolong child custody cases involving horrific child abuse.
  • Horrific cases of child abuse in British Colombia will soon be handled in the criminal courts – where they belong.

Here’s British Colombia’s new definition of “family violence”:

“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;

Family court custody evaluators, mediators and parental coordinators might still be foolish enough to recommend Gardner’s “threat therapy” for children with abusive parents who commit the above mentioned crimes against them. However, those working in the family courts who recommend “threat therapy” for victims of terrible crimes will no longer be the “go to” family court players. They will be known instead as the dangerous “quacks” they already are.

Once the new family laws in British Colombia go into effect, something else will happen too. Statistics gathered each year will begin to show how many thousands of lives the new family court laws will save.  We’ll see happy Canadian taxpayers saving millions of Canadian dollars in each consecutive budget cycle. It should be very interesting and very encouraging.

Let’s not sit and watch what happens for too long though – we need to hurry up and make a few phone calls to our own legislators and ask them to do the same.

From  BILL 16 — 2011 FAMILY LAW ACT :

“… Part 9 — Protection from Family Violence

Definitions

182  In this Part and the regulations made under section 248 (1) (d) [general regulation-making powers]:

“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;

“residence” means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence.

Orders respecting protection

183  (1) An order under this section

(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative, and

(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) A court may make an order against a family member for the protection of another family member if the court determines that

(a) family violence is likely to occur, and

(b) the other family member is an at-risk family member.

(3) An order under subsection (2) may include one or more of the following:

(a) a provision restraining the family member from

(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,

(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,

(iii) following the at-risk family member, or

(iv) possessing a weapon or firearm;

(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;

(c) directions to a police officer to

(i) remove the family member from the residence immediately or within a specified period of time,

(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or

(iii) seize from the family member any weapons or firearms and related documents;

(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(e) any terms or conditions the court considers necessary to

(i) protect the safety and security of the at-risk family member, or

(ii) implement the order.

(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.

(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

Whether to make protection order

184  (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors:

(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.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account

(a) the history of, and potential for, family violence,

(b) the extent of any injuries or harm suffered, and

(c) the respective vulnerability of the applicants.

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist:

(a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;

(b) the family member against whom the order is to be made is temporarily absent from the residence;

(c) the at-risk family member is temporarily residing in an emergency shelter or other safe place;

(d) criminal charges have been or may be laid against the family member against whom the order is to be made;

(e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred;

(f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made…”

“… If child a family member

185  If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order],

(a) whether the child may be exposed to family violence if an order under this Part is not made, and

(b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child’s parent or guardian.

Orders without notice

186  (1) An application for an order under this Part may be made without notice.

(2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may

(a) set aside the order, or

(b) make an order under section 187 [changing or terminating orders respecting protection].

Changing or terminating orders respecting protection

187  (1) On application by a party, a court may do one or more of the following respecting an order made under this Part:

(a) shorten the term of the order;

(b) extend the term of the order;

(c) otherwise change the order;

(d) terminate the order.

(2) An application under this section must be made before the expiry of the order that is the subject of the application.

(3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection]…”

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