Family violence can occur in any family, regardless of social standing, economic level, race or creed. During the separation process, episodes of family violence can increase or even occur for the first time.
Family Violence in the Family Law Context
The British Columbia Family Law Act (FLA) defines “family violence” as including physical, sexual, psychological and emotional abuse and, in the case of a child, direct or indirect exposure to such abuse. You can find the complete definition of family violence in section 1 of the FLA here.
In the context of family law proceedings, family violence is relevant when determining what parenting arrangements are in the best interests of a child. No agreement or court order is considered to be in the best interests of a child unless it protects a child’s physical, psychological and emotional safety, security and well-being. When assessing family violence, a judge will consider factors such as its nature and seriousness, how recently it occurred,its frequency, and whether it was directed toward the child.
Legal Options to Protect You from Family Violence
If you are experiencing family violence, a criminal protection order known as a peace bond may be necessary to ensure the safety of you and your children.
A peace bond is a protection order made under the Criminal Code of Canada that can protect you from anyone (not just a spouse). To obtain one, you will need to be able to substantiate that your fear for your safety or that of your family, current partner or property. You do not need a lawyer to apply for a peace bond – you must call the police and file a complaint. Crown counsel will also be involved. If a peace bond is ordered, it will last a maximum of 12 months and will not result in a criminal record or conviction unless the conditions of the bond are breached.
Protection Order or Personal Injunction
There are also non-criminal, legal orders that can be obtained, namely a family law protection order or a personal injunction.
A non-criminal family law protection order can be obtained under section 183 of the FLA in either BC Provincial or Supreme Court. Such an order can protect you from a “family member” which includes your partner, someone you previously lived with in a marriage-like relationship, your child’s parent or guardian,a relative of any of these people who lives with them, or a relative of yours that lives with you.
To obtain a family law protection order, you must make a court application. This can be done on an urgent basis where necessary, and also on an ex parte basis (meaning without the other party present and/or knowing about the application) in certain circumstances. Specifically,you must prove that the at-risk family member who is applying for the protection order is or is likely to be at risk of family violence. Such an order can limit or stop communication between parties, keep someone from going near your home, school or workplace, or that of your children, and remains in effect for 12 months (unless the judge specifies a different end date).
Finally, you can obtain a personal injunction. This involves a BC Supreme Court judge ordering that a person refrain from harassing or interfering with you and any minors, if there is evidence of harassment, violence or threats of violence. To apply for such an injunction, the parties must not live or work together, must both live in BC, and may or may not be related to each other.
Help is Available
If you are suffering family violence or have reason to fear for your safety, you are not alone. Please seek help. One of our lawyers can provide legal help and/or direct you to community resources to assist you and your family during this difficult time. If there is already a protection order in place that is being ignored, we can help you enforce it.
If you are in imminent danger, call 9-1-1 and/or seek the assistance of shelters and social services, such as the Domestic Violence Help Line at 1-800-563-0808 or Kids Help Phone at 1-800-668-6868.
Anyone who has a reason to believe that a child or youth has been, or is likely to be, harmed or neglected by their parent and needs protection has a legal duty to report this. More information about this legal duty to report is found in sections 13 and 14 of BC’s Child, Family and Community Service Act.