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

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Old 07-31-2015, 08:08 PM
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Default 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.
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Old 07-31-2015, 09:09 PM
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The person who has had false accusations made against them is often the victim IMO.
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Old 08-01-2015, 06:02 AM
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Quote:
Originally Posted by arabian View Post
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.
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Old 08-01-2015, 12:28 PM
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Default Acquiescence Vs. Non-Acquiescence

Quote:
Originally Posted by OntarioDaddy View Post
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.
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Old 08-01-2015, 01:07 PM
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Quote:
Originally Posted by LovingFather32 View Post

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 ...
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Old 08-01-2015, 01:41 PM
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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.
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Old 08-01-2015, 01:50 PM
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Quote:
Originally Posted by OntarioDaddy View Post
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.
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Old 08-01-2015, 01:52 PM
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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.
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Old 08-01-2015, 01:54 PM
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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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Old 08-01-2015, 01:55 PM
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Simply breaking it down into sections. Further below:

C. Inability to facilitate access

[182] Section 10 of the DA requires the judge to consider the parties’ willingness to facilitate contact with the children.

[183] The joint custody and guardianship model assumes the parties are willing to facilitate contact. For guardianship matters, this includes a party’s willingness to consult with the other and communicate to the point of making mutual decisions in the interests of the children. For parenting time, it includes a parent’s ability and willingness to take all reasonable steps to facilitate parenting time: J.K.K. v. T. P.K, 2010 BCSC 1202 (CanLII), at para. 66, Davidson v. Davidson, 1997 CanLII 1974 (BC SC), 1997 CanLII 1974 (B.C.S.C.).

[184] In D.L.S., I made the observation at para. 172 that it is not necessary for a judge to find a parent’s conduct has caused the child to lose parenting time with the parent before concluding a parent has interfered with the child’s right to see their parent:

[A] pattern of conduct by the other parent that interferes with or disturbs the child’s enjoyment of their parenting time with parent is no less serious than conduct depriving them of it altogether. This is because such conduct interferes with the parent’s ability to devote time and attention to the child, which is clearly in the child’s best interests, and it exposes the child to parental conflict, which clearly is not…

[185] Conduct by a principal resident parent that interferes with the child’s ability to receive and enjoy the other parent’s love, companionship, and instruction stands in opposition to the DA’s guiding principle that a child has a right to maximum contact with both parents consistent with the child’s best interests. Such disruptive conduct by a parent is contrary to the child’s best interest because it inhibits the ability of the parent who has lost parenting time to exercise their parental responsibilities. Such conduct can weaken the child’s relationship with the parent, which is against the child’s best interests. It can hamper the child’s physical, psychological and emotional well-being, psycho-social development, emotional well-being and sense of security, also against the child’s best interests.

[186] In some cases, a custodial parent’s conduct may foment litigation and cause the other parent to suffer stress-induced medical problems. Such conduct may cause the other parent economic harm, depleting resources that would have been available to the child to facilitate time with their parent. That has occurred in this case.

[187] As I understand the DA, the FLA and the authorities, judges must be sensitive to how close the child-parent bond is to the emotional well-being of both parents and children.

[188] The evidence in the present case shows a long-standing pattern of conduct by the Respondent that has impeded the Claimant’s ability to communicate with the children, facilitate access visits, inform others involved in the children’s care of access terms and meeting obligations the guardianship order requires of her. She has breached court orders and sought to impose her own views, for example in insisting on separate visits by the children, contrary to express terms of the parenting arrangement.

[189] The evidence shows, on the other hand, a long-standing pattern of the Claimant trying to reach agreements and proposing ways the children can maintain contact to make it easier to schedule parenting time. This demonstrated willingness to try to reach agreements argues in favour of a change in principal residence for B.B.

[190] I am confident the Claimant will, as he would be required, facilitate parenting time with the Respondent in a non-confrontational way which will minimize conflict.

[191] Without a change in principal residence, I find the Claimant would be confronted with a continuing pattern of opposition and interference, sometimes subtle, sometimes overt, which would be contrary to B.B.’s best interests.
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