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Domestic Violence Dealing with abuse and violence. Getting support and help.

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Old 08-22-2013, 05:51 PM
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Default Defining "Family Violence" in Case Law (BC)

Hi All,

Recent article in Canadian Lawyer Magazine that does a much better job of reviewing this case law than I could ever do that anyone facing "family violence" (domestic violence, intimate partner abuse, etc...) should really consider:

An ?expansive? interpretation of family violence | Canadian Lawyer Magazine

Quote:
Unco-operative behaviour by parents fighting legal battles isn’t unusual, but a “remarkable” ruling has determined it can amount to “family violence.” British Columbia’s Family Law Act, which came fully into effect in March 2013, defined “family violence” for the first time under provincial law, to cover a range of psychologically, emotionally, and physically damaging actions. The definition of “family violence” is “the one area where B.C. is ahead of any other province in terms of its legislation,” asserts John-Paul Boyd, family lawyer at Aaron Gordon Daykin Nordlinger LLP.
The article goes on to cite the following as some of the violence, found that the mother had conducted against the father in the legal dispute. BC Law now allows for the conduct of a parent in the litigation and how they conduct the litigation (say bring a false emergency ex-parte motion, make false allegations, lock people out of their homes, etc...) can be considered as "violence".

Quote:
Between June 2010 and January 2013, the mother consistently thwarted the father’s attempts to sell the property for a realistic price, resulting in a string of legal actions. Examples of her “oppositional behaviour” listed in the 50-page decision included changing the locks, refusing to provide keys, ignoring e-mails, and failing to reveal in a timely fashion that her solicitor had placed a lien against the property for legal fees. On one occasion, the father travelled 33 hours by bus to see the children over the weekend, only to have to spend five hours finding a locksmith so an appraiser could value the property.
This kind of conduct was considered by the justice as "family violence" under the new BC legislation:

Quote:
In weighing whether to grant the father’s application for principal residency for his son, Brown turned to the Family Law Act, which replaced the Family Relations Act. Under s. 38 of the new act, a court must consider the presence, and seriousness, of family violence. Brown’s ruling stated: “I find the [mother’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.
Here is the actual case law which I haven't had time to review in full:

M.W.B. v. A.R.B., 2013 BCSC 885 (CanLII)
Date: 2013-05-21
Docket: 20547
URL: CanLII - 2013 BCSC 885 (CanLII)
Citation: M.W.B. v. A.R.B., 2013 BCSC 885 (CanLII)

See section VIII.(D) "What constitutes family violence?" for more.

I would add to this list of what constitutes family violence:

1. Improperly filed emergency ex-parte motions that fail to meet the threshold of requirements as set out in case law;

2. Filing matters in the wrong jurisdiction where the children do not habitually reside and requiring the court to move the matter to the proper court district (forum shopping);

3. Threatening the other party with criminal charges for non-criminal conduct and/or actually calling them - "I will call the authorities!", calling CAS and a result that doesn't result in a protection order on more than 1 occasion;

4. Threatening to physically abuse/assault or parent to any other third party; and

5. Other "truism" linked conduct...

Good Luck!
Tayken
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Old 08-22-2013, 08:00 PM
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Tayken,
Can this be cited in Ontario?
Thanks!
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Old 08-22-2013, 10:49 PM
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Originally Posted by BitHunter View Post
Tayken,

Can this be cited in Ontario?

Thanks!
Excellent question for which I unfortunately do not have the answer for. There is a process that you have to go through to bring forward jurisprudcen from different jurisdictions (provinces) in Ontario.

As this is citing BC legislation directly it may not be relevant to the matters in Ontario as the definition of "violence and abuse" (Rule 24 of the CLRA) is very different that the definition of "family violence" in BC.

BC's new family laws are incredibly progressive and should be really investigated by Ontario government and considered for adaption/adoption here.

This is something that hopefully OrleansLawyer could shed some light on possibly. I will do some research on the matter but, I can't promise I can find the answer to this one. It is not information I have come across in my readings so far.

Good Luck!
Tayken
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Old 08-23-2013, 11:43 AM
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Very good find Tayken, as always, you full of good information.

As for applying this Case Law to Ontario, I believe you could.
Summarize the case law, make argument that "BIOC" definition is always changing.
Mention under UN convention of "Right of Child" which Canada has signed on to a child is to be free from all forms of discrimination. Argue this should also include where the child lives.

A child of Ontario should benefit from the "case law" as a child in BC.
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Old 08-23-2013, 03:01 PM
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Quote:
Originally Posted by involveddad75 View Post
Very good find Tayken, as always, you full of good information.
No problem.

I think it could also be leveraged in discussions with organizations like the Children's Aid Society too... Why their constant involvement due to "anonymous" calls may constitute "family violence"... Why they are possibly obligated to disclose the information of the people raising unsubstantiated and false allegations to the CAS... As it may constitute "family violence"...

So that you can protect your family from the "violent" false allegations and conducts of others. Also, why they should be assisting to protect the children by disclosing this information to at minimal law enforcement so the proper criminal charges can be laid against the perpetrators of "family violence".

Good Luck!
Tayken
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Old 09-10-2013, 12:04 PM
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Quote:
There is a process that you have to go through to bring forward jurisprudcen from different jurisdictions (provinces) in Ontario.
To briefly address the above:

You can cite case law from any jurisdiction - Ontario, Alberta, Florida, Brunei. The purpose of the citation is to show that other courts have ruled a certain way in certain fact situations, and so the court should defer to the precedent set.

Case law is particularly influential on a court when made by a court of equal or greater jurisdiction. This is the principle of "stare decisis et non quieta movere"; to stand by decisions and not disturb the undisturbed. Thus, a judge should not (without good reason) come to a decision different from another holding of the same court.

Binding precedent refers to a precedent generated by a court to which an appeal could be made. For example, the Supreme Court of Canada creates binding precedents on all courts since all courts in Canada appeal to the supreme court as a last resort.

A precedent set by a court outside the appeal path is not binding. For example, a court of appeal decision in Alberta is not binding on a lower court in Nova Scotia.

Decisions from outside the jurisdiction can be influential on a judge without being binding. The factors that are involved are:
- Seniority of court (small claims courts carry less weight than courts of appeal, for example);
- Reputation of the judge, if any;
- Relative reputation of jurisdictions (BC is viewed as being much more maverick than other jurisdictions, and so "strange" decisions may come from there); and
- Most important, the facts. Keep in mind, the applicable legislation is a part of the facts.

For example, equalizing property between unmarried cohabitants should be successful in BC (given the recent changes there), but using that case law to support the same in Ontario would be unhelpful, given the difference in applicable law.

Ideally, a party is able to support their position with appellate jurisprudence from their jurisdiction. However, if the fact situation is novel, the only case law may exist out of province (or even out of country). In those situations, it can be compelling to show how other courts have addressed the issues.
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