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  • 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.

  • #2
    The person who has had false accusations made against them is often the victim IMO.

    Comment


    • #3
      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.

      Comment


      • #4
        Acquiescence Vs. Non-Acquiescence

        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.

        Comment


        • #5
          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 ...

          Comment


          • #6
            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.

            Comment


            • #7
              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.

              Comment


              • #8
                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.

                Comment


                • #9
                  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).

                  Comment


                  • #10
                    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.

                    Comment


                    • #11
                      More, almost done:

                      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.

                      Comment


                      • #12
                        Last one, OntarioDaddy. With hope it is helpful:

                        E. Did family violence occur in this case?

                        [199] I find the Claimant’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.

                        [200] The Respondent’s conduct and needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources.

                        [201] The stress resulting from the Respondent’s conduct and the needless litigation it generated has precipitated in the Claimant a sometimes very painful medical condition that has needed surgical procedures. Contact with the Respondent and litigation aggravates the condition. I note that he was in much pain on his March 2012 and December 2012 access visits, but the children were not made aware of this; and as well in the December 2012 holiday visit, he persisted despite the pain, providing the children with an excellent holiday experience. However, he had to shorten it somewhat, which the Respondent criticized, due to his condition at that time.

                        [202] The Respondent’s refusal to pursue recommended professional counselling for anger management, or take part in courses such as “Parenting after Separation”, and the history thus far, give little reason to expect a change in the Respondent’s future behaviour. While anger problems appear not to have directly impacted the children’s relationship with the Respondent, it remains a concern.

                        [203] The Respondent complains indignantly about the stress of litigation, for which she blames the Claimant. But I have no evidence of ill-health or stress-related condition from which she suffers.

                        [204] The best interests of children suffer when abusive oppositional behaviour and litigation fomented by one parent’s conduct harms the health and financial well-being of the other parent. This in turn harms the children’s economic safety and security.

                        [205] Further, the Respondent’s reckless and oppositional behaviour connected with the commercial property has damaged the children’s safety, and economic security. It effectively deprived them of receiving any benefit from sale of the property, endangered the Claimant’s capacity to support the children and consumed money the Claimant could have used for a greater number of parent time visits. The Respondent knew her delaying and oppositional conduct harmed the Claimant’s capacity to pay the cost of access visits.

                        [206] If a parent’s abusive conduct harms the well-being of the other parent to the extent they may have to go on stress leave, this negatively impacts the child’s economic security.

                        [207] The Respondent knew the children loved their father very much and felt hurt when the Claimant had to move to Vancouver. They did not fully understand the reasons he had to move away. The Respondent knew the father had to move to Vancouver to earn enough to pay support and pay debts. The children missed their father and needed as much personal contact with him as practicable after he moved. The Respondent’s conduct made this increasingly difficult.

                        [208] The Respondent knew or ought to have known the impact her conduct was having on the Claimant’s financial situation; the Claimant made it clear to her. From this, I infer the Respondent is prepared to let her anger at the Claimant influence her to act in a way that indirectly harms the best interests of the children. I find the Claimant will not conduct himself in that way; the litigation history proves otherwise.

                        [209] In summary, I find that the Respondent has directed violence at the Claimant that has indirectly harmed the children’s psychological and emotional well-being and economic security. Without a change of principal residence for B.B., I anticipate the Claimant could expect to face the same continuing pattern, usually subtle, sometimes overt, of oppositional behaviour and interference. Without intense counselling, I doubt the Respondent will be able to change her behaviour. She has no respect for professional opinion and apparently little regard for court orders.

                        [210] I find that a change of principal residence for B.B. to Vancouver will likely reduce conflict and tension that has surrounded parenting arrangements previously. I find the Claimant will facilitate access; the Respondent will inhibit it. I find the Claimant will not conduct himself as has the Respondent regarding access visits. This is in the best interests of B.B.

                        [211] I will now turn to the list of s. 37 factors. I must be satisfied that whatever order I decide to make protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

                        Comment


                        • #13
                          Originally posted by LovingFather32 View Post
                          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.
                          I agree with everything you've written and I thank you for it. However, I do feel this type of situation is genderless. This is not yet recognized. Either way, it should not be condoned by any system.

                          I thank you for your insight and knowledge. I've been a fan of yours for a while.

                          Comment


                          • #14
                            Originally posted by Janibel View Post
                            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 ...
                            I believe you are on the ball, especially with the red I've highlighted. Fakers are indeed fakers. The law does not recognize this and it indeed destroys lives. You are right, it should be corrected as study after study, "fakers" are a growing problem.

                            I thank you for your input. I am glad this discussion has taken off to possibly provide hope and change to a system that affects so many families.

                            The root is essentially "the children's best interests" but a liar / faker is not aligned with that way of thinking. Recognition of this requires advocacy IMO.

                            Comment


                            • #15
                              Originally posted by BF View Post
                              However, I do feel this type of situation is genderless. This unfortunately is not yet recognized. Either way, it should not be condoned by any system.
                              It certainly is genderless. I would never assume otherwise, nor write it anywhere. I will also do some research to help your case out.

                              Comment

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