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-   -   Domestic Violence Genders (http://www.ottawadivorce.com/forum/f12/domestic-violence-genders-19225/)

BF 07-31-2015 08:08 PM

Domestic Violence Genders
 
Both genders face domestic violence as it is perceived by the victim.

B.C. was the first province a short while ago to define what domestic violence is.

Nobody should feel threatened. On the reverse, no victim should endure problematic misrepresented facts in Family Court to "get a leg up" ensuring the abuser gains control / ability for continuance to abuse in legal terms.

It's genderless. Either way, it's awful for any victim.

I look forward to genuine / thoughtful comments.

I thank you ahead of time.

arabian 07-31-2015 09:09 PM

The person who has had false accusations made against them is often the victim IMO.

BF 08-01-2015 06:02 AM

Quote:

Originally Posted by arabian (Post 198080)
The person who has had false accusations made against them is often the victim IMO.

Thanks for your response.

However, little recourse is available through various provincial family laws to relieve the victim. Years pass by while it continues to abuse the (genderless) victim over and over. The victim generally finds themselves grasping for any and all sustainability against a power imbalance.

You're right. False accusations are often against the victim. It's a cycle that family law does not seem to recognize in many provinces. Should such a victim lose ability to see children / custody due to a malicious and abusive opposing litigant?

My understanding is the court sees this all the time. LF32 is a popular case on this board. When does change take place? I am with hope the 2013 BC domestic violence law is adopted across the nation. Where Ontario is generally the trend-setter, BC has it right -- for either gender. My honest opinion.

Arabian, I thank you for your response. I hope for others as well.

LovingFather32 08-01-2015 12:28 PM

Acquiescence Vs. Non-Acquiescence
 
Quote:

Originally Posted by OntarioDaddy (Post 198086)
Days, months, or years later, when they decide to go to court and see their kids again, they wonder why no one is fighting for them, I mean kids, and taking their parenting seriously.

You don't always get evidence for DV, but delays will give the accuser more credit.

When an individual is accused of DV .. there is a shock to the system. There is no handbook. I called the police right away, frantic to see D4. I didnt know what an emergency motion was nor did the police tell me. The police told me to retain a lawyer. I did right away and started an application.

I think defining delay is a tough one sometimes. Nobody is a court expert/family law guru the moment of an abduction in the midst of false allegations.

You need to be able to prove that you "disagree and do NOT consent to the situation" .. As for me? .. I called 911, went to the station, called her family (on phone bill), called missingkids.ca (have transcripts), have e-mails to lawyer requesting an emergency motion, etc, civil texts to ex notifying gently of my disapproval and trying to work things out for the child, etc.

If a parent does not go to police, does not search for their child, does not retain counsel and start an application and shows complete acquiescence .. then ONDaddy's perception hold weight here. If a parent does all of that that then I agree .. they must not be too interested in finding their kid anyways.

I hope that parents like these are few and far between.

Janibel 08-01-2015 01:07 PM

Quote:

Originally Posted by LovingFather32 (Post 198088)

If a parent does not go to police, does not search for their child, does not retain counsel and start an application and shows complete acquiescence .. then ONDaddy's perception hold weight here. If a parent does all of that that then I agree .. they must not be too interested in finding their kid anyways.

I hope that parents like these are few and far between.

True enough^^^ Any caring parent will do anything and everything possible when faced with this situation - panic mode is natural when our children's safe whereabouts are concerned. No place for apathy.

Domestic violence is a serious issue and should be dealt with in criminal courts. Allegations should be proven beyond a reasonable doubt to have any consequences in family court - otherwise it's nothing more than posturing for financial gain.

As a survivor of long term DV, my only wish is that those who make these false claims are held accountable to the highest extent of the law.

Countless lives are ruined by "fakers" who abuse the system when there are so few resources made available to help true victims both male and female. The reality of family court is that whoever gives a better show, has the most aggressive lawyer, makes up the most flat-out lies ... gains advantage. This has to change .....

In my case, I had ER photos, many years of police interventions until formal charges were made. Ex was prosecuted and found guilty. Easy case with no ambiguities. The majority of cases are not so cut and dry, this is where the courts go wrong - in assuming that a so-called victim is telling the truth.

My heart goes out to those falsely accused ...

BF 08-01-2015 01:41 PM

I'm glad this issue of DV in family law has had such a profound response here. I thank all of you for participating. I shall respond to each of you shortly to the best of my ability and research understanding. Thank you again.

BF 08-01-2015 01:50 PM

Quote:

Originally Posted by OntarioDaddy (Post 198086)
What does BC say DV is/isn't?

OntarioDaddy, this is the research I have sourced regarding the new BC family law:

Legal Presentation as “Facts"
You can cite case law from any jurisdiction: Ontario, Alberta, etc. 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 or "stare decisis et non quieta movere"; to stand by decisions.

Decisions from outside the jurisdiction can be influential on a judge without being binding. The factors that are involved are:
(a) Seniority of court;
(b) Reputation of the judge, if any;
(c) Relative reputation of jurisdictions; and,
(d) Most important, the facts. Applicable legislation is a part of the facts.

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.

This is the portion of law the above paragraph I’d like to refer to. It came in force on March 18, 2013:

FAMILY LAW ACT
[SBC 2011] CHAPTER 25

"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.

Please forgive the misalignment of the points above. Should be fairly clear where they belong as sub points.

More in next post.

BF 08-01-2015 01:52 PM

The case that spelled it out based on BC's new DV definition(s):

From the Superior Court of British Columbia (“greater jurisdiction” to OCJ):

BC Case (Law):
CanLII - 2013 BCSC 885 (CanLII)

Portions from the cited link above (so you don’t have to read it all):

VIII. CHANGE OF RESIDENCE AND CHILD SUPPORT ISSUES

A. Legal principles

[172] The August 2011 hearing occurred when the FRA was in force. As of March 18, 2013, the new Family Law Act, S.B.C. 2011, c. 25 (“FLA”) has come into force and the FRA has been repealed. The parties’ claims are pleaded pursuant to the FRA and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“DA”). The DA remains in force. Where the provincial legislation applies, I have considered the FLA.

[173] The DA uses the terms “custody” and “access” when referring to children of the marriage. The FRA used terms “custody”, “guardianship” and “access”. The new FLA refers to “guardians” and “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact with a child”.

[174] The FLA is subordinate legislation to the DA. Nevertheless, FLA principles in some instances are interchangeable with those under the DA and in any case remain instructive.

[175] The test for guardianship and parenting arrangements for a child in our province has long been the child’s best interests: Robinson v. Filyk, 28 B.C.L.R. (3d) 21, 1996 CanLII 3310 (BC CA), 1996 CanLII 3310 (C.A.).

[176] The FLA now requires the Court to consider only the best interests of a child. This principle applies to all existing child custody questions.

[177] Section 37 of the FLA provides:

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) 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;
(g) 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;
(h) 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;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

[178] Subsections 16(8) - (10) of the DA set out three main factors that govern decisions on custody and access under the DA:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[179] As per s. 40(4) of the FLA, no presumptions in favour of a parent predetermine the child’s best interests.

BF 08-01-2015 01:54 PM

More (only so many characters per post, I apologize):

B. Conduct of a parent

[180] Section 16(9) of the DA limits consideration of a party’s past conduct to conduct relevant to their ability to parent.

[181] In D.L.S. v. R.S., 2012 BCSC 977 (CanLII), aff’d on appeal 2012 BCCA 406 (CanLII), at para. 173, I commented on the reasons underlying the principle that s. 9 of the DA limits the role of past conduct in matters relating to child custody:

The law is clear, both in statute and in case authority, that judges are not to consider past conduct unless the conduct is relevant to the ability of that person to act as a parent of a child. Prof. McLeod, member of the University of Western Ontario, Faculty of Law, captured the essence of the evidentiary rule against considering past conduct when he commented, “[a] person may be a poor spouse but a satisfactory parent. A person may even be a poor parent to one child but a good one to another” (Stark v. Stark (1988), 1988 CanLII 3394 (BC SC), 16 R.F.L. (3d) 257 (B.C.S.C.), head note comment).


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