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Old 08-01-2015, 01:56 PM
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D. What constitutes family violence?

[192] Section 37(1)(g) requires a judge to consider the impact of family violence and whether it is directed toward the child or a family member.

[193] Section 38 of the FLA provides:

38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:

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

[Emphasis added.]

[194] The definition of “family violence” in section 1 of the FLA includes:

...

(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) …,
(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

[Emphasis added.]

[195] The section 1 definition of a family member under the FLA includes (a) the person’s spouse or former spouse and (e) the person’s child.

[196] In the present case, the FLA’s definition of property encompasses the parties’ commercial property: s. 1, “family property” and s. 84.

[197] Following the August 11, 2012 trial, I found there had been a number of occasions where the Respondent and her mother had not respected the existing access order. At trial in August 2011, the Claimant sought a change of principal residence for B.B., but he wished to defer any change until fallout from the separation and his own situation in Vancouver had become settled. In my findings, I also noted the Respondent’s desire for stability, predictability and her desire to keep the children together.

[198] I noted the beneficial influence of the Claimant’s personality on B.B., the Claimant’s personal interests and the positive male role model he would provide for B.B., as well as Dr. La Torre’s concerns about B.B.’s development. Dr. La Torre noted B.B.’s need for a male presence in his life. He noted, as well, that B.B. found himself somewhat outside the “family triangle linking him, his sister and mother”, which he saw as dominated by the stronger personalities of the Respondent and J.B.
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