Your Safety in Family Law

Physical and emotional safety is a common issue that arises when there is a breakdown in a relationship. When things are simply not working and emotions are running high, some people resort to intimidation and at times physical violence. Abuse can range from physical, sexual, emotional, financial and psychological.

Family Law / Civil Law

There are remedies available in family law to guard against domestic abuse. The remedies may range from getting a Protection Order to obtaining an order for Exclusive Possession of the home. These remedies are available under the Family Law Act, otherwise known as civil remedies (as opposed to criminal remedies). More about civil remedies are discussed below.

Criminal Law

When the situation is dire and there is insufficient time to rely on civil remedies, you must call the police and request immediate assistance. The police will attend and find out if there is any evidence of physical violence. It is their policy to charge the person for domestic violence if there is any evidence of physical violence (e.g., any marks on the body, clumps of hair, welts or blood). If the allegation involves sexual assault, the police must also follow specific mandates. Where the police finds sufficient cause to believe that there was some form of violence, the alleged perpetrator will be charged and be required to leave the family home immediately. This is commonly accompanied by a peace bond of one year or longer, depending on the outcome of the criminal charge.

A peace bond or conditional order requires the party charged to stay away from the home, where the alleged victim resides, and from the place where the alleged victim works. There are frequently additional terms imposed on the peace bond, such as keeping the peace, no firearms, and no direct or indirect contact with the victim(s). Always get the file number of the incident from the police officer and the officer’s name who attended to the incident and provide the same to your lawyer. Information about the incident may be relevant in your family law proceeding. You should also keep the file number handy in case you need to call the police again if the alleged perpetrator is in violation of the peace bond. Providing the file number to the police will enable them to find the previous incident immediately.

Criminal Law – Advantages

The advantage of reporting the matter to the police is that you get immediate assistance and do not have to pay a lawyer to get a peace bond against the alleged perpetrator. If the alleged perpetrator is charged, the police and Crown prosecutor will handle the criminal proceeding. You will be required to attend the criminal hearing to testify if the Crown and the alleged perpetrator are not able to settle the matter (e.g., a stay of proceedings if the matter is a first offence and the incident was not serious). You will likely be asked to provide a Victim Impact Statement to the Crown well before the criminal hearing. This will assist the Crown to determine how to proceed against the defendant.

Criminal Law – Disadvantages

The disadvantage or hurdles that the criminal matter may create is that it is out of your hands. The Crown prosecutor may proceed with the criminal matter even if you feel that the situation does not warrant it. And, if there is a peace bond against the alleged perpetrator, they are usually not permitted to have direct or indirect contact with you, making it difficult to have settlement discussions. All communications will have to go through lawyers. Depending on your situation, these issues may present themselves to be an advantage to you as these terms and procedures are in place to protect the victim and end the cycle of abuse commonly found in domestic violence.

Ministry of Children and Family Development

If the incident involved or was seen by any minor children, the police are required to notify Child Services. A social worker or a case worker from the Ministry of Children and Family Development will get involved and interview both parties to assess the situation to determine and ensure the safety of the children. Counseling for the children may be recommended or required. When the Ministry is involved, it is prudent for the family law lawyer to work with the Ministry to make sure that parenting arrangements, including whether the alleged perpetrator should have any, limited or supervised parenting time, is consistent with their recommendations or requirements.

Family Law Remedies

If you decide to apply under the Family Law Act for some form of protection, it is a Protection Order that you would be seeking. Specific terms and conditions may be sought, such as requiring the other party to stay away from the family home or place of employment of the applicant, no direct or indirect contact, and to release their firearm to the police. Once obtained, the Protection Order gets registered with the RCMP database. This is automatically done for you by the Registry who files the Protection Order. A violation of a Protection Order could result in criminal charges. More information is available on the Government of BC’s website.

Another order that is available under the Family Law Act is an order for Exclusive Possession of the Family Home. This order may not be necessary if a Protection Order requires that the respondent not enter or come close to the family home. However, where there is no Protection Order in place and the current living arrangement is not workable, an order for Exclusive Possession of the Family Home may be more appropriate. The Courts will favour the party who has primary care of the children and the home in located in an area close to the children’s school, friends and family. Evidence of this nature helps to establish that exclusive possession of the home is necessary for the continued care of the children, a pressing concern that the Courts take seriously.

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Susan Kim

Susan has successfully litigated family law, commercial, estate and civil cases in Provincial Court, Supreme Court, Federal Court and the Court of Appeal for over 20 years.

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