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Court harassment, family violence, and the Family Law Act

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Family law cases can be very contentious. There is a lot of emotion involved in these cases and, unfortunately, some people find it hard to see the forest for the trees when they’re involved in a case that involves their children or a former partner.

Sometimes this can lead to court harassment. Court harassment is when one person uses the legal system to harass the other party. This could, for example, be someone filing multiple unnecessary court applications as a way to waste their ex’s time and money. A case like this made its way through BC’s Supreme Court recently, and the ruling has important implications for family law cases in BC.

The case, M.W.B. v. A.R.B, looks at a couple who continued to go to court even after their divorce. Over the two and a half years since their divorce, the wife had delayed the sale of joint property (leading to a loss in value), hindered the father’s access to his children, and was the cause of four additional court hearings. The main point of contention in this case, however, was the father’s application to have one of the two children relocate across the province to live with him.

The interesting bit comes in here though; while the case had previously been started under the Family Relations Act, by the time it was heard, the Family Law Act applied. The new act mandates that the best interests of the child is the only factor that can be taken into account in parenting matters. One of the factors in determining the child’s best interests is the presence of family violence.

Family violence has a broader definition than just physical abuse. For this case, the judge homed in on the part of the definition that outlines emotional and psychological abuse; this includes harassment, restriction on a family member’s financial autonomy, intentional damage to property, and more. The judge ruled that the wife’s actions constituted harassment and was a form of family abuse — her actions caused financial and health issues for the husband, which indirectly affected the children’s best interests. The husband won the case.

What this means is that the court now has three ways of dealing with court harassment:

  1. The court can make an order to stop someone from taking further steps in a case if they are found to be misusing the court process.
  2. The court can strike an application or adjourn a proceeding until an order is complied with.
  3. As in this case, the court could determine that one party’s actions constitute family violence and take that into account to determine the child’s best interests or make a protection order.

For a full rundown of the judgment, you can read JP Boyd’s excellent post.

The new Family Law Act: Protection orders and family violence

On November 24, 2011, BC’s new Family Law Act was introduced. It will come into effect March 18, 2013. This act will have wide-reaching effects on family law in the province. Here is a summary of its effect on protection orders and family violence. For more information, see the act itself and our introduction to the act.

Under the new Family Law Act, family violence includes:

  • physical abuse
  • sexual abuse
  • emotional and psychological abuse
  • forcibly confining a person or restricting the person’s freedom
  • withholding the necessities of life

If a person is at risk of family violence, the court may make a protection order. Either the person at risk — or someone else on behalf of the person at risk — can apply for the order.

Protection orders will take the place of restraining orders under the Family Relations Act. Any restraining orders already in effect will continue without change.

Protection orders can limit contact and communication between parties if there is a safety risk. Protection orders can, for example

  • restrict one party from contacting the other
  • stop a specific person from visiting the family home
  • control stalking-type behaviour
  • prevent someone from owning a weapon

If a protection order clashes with another order under the Family Law Act, the protection order takes priority over the other order for as long as there is conflict. For example, you may have a protection order in place that says your ex-partner is not allowed to communicate with you. You may also have a court order that says your ex-partner can have contact with your child. The protection order will overrule the contact order if you have to communicate with each other to arrange for contact.

You can’t use the new act to enforce a protection order. But a breach of a protection order is considered a criminal offence, and the police can enforce it under the Criminal Code.

Our thanks to JP Boyd for providing the background for this series. You can find more information on the new Family Law Act, as well as other family law issues, at his BC Family Law Resource Blog.