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In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

harassment

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

Last week I discussed some of the principles that are relevant to an Ontario court’s ability to consider “violence” against one spouse by the other as a factor in whether to order that the victimized spouse be granted exclusive possession of the matrimonial home (read the full post here).

In British Columbia, the legislators have gone one step further: the counterpart to our province’s Family Law Act expressly expands the definition of “family violence” to specifically include:

• 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,

• sexual abuse of a family member,

• attempts to physically or sexually abuse a family member,

• psychological or emotional abuse of a family member, including;

o intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

o unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

o stalking or following of the family member, and

o intentional damage to property, and

• in the case of a child, direct or indirect exposure to family violence.

(And it should be noted that B.C. courts are allowed to consider family violence not merely in connection with post-separation possession of the family home as in Ontario, but also in relation to numerous other aspects of the parents’ relation and separation, including assessing the best interests of the child).

In a recent B.C. decision, the court was asked to consider the limits of this expanded definition. There, the wife claimed that not only had the husband engaged in this kind of impugned conduct, but that the husband’s brother had been aggressive and abusive to her as well.

For example, the brother – who was a physically large man – attended at the drop-offs and pick-ups of the couple’s daughter at the mother’s apartment. He was in the room when the mother had FaceTime visits over the internet with the child, and once filmed the child while having dental treatment. On one noteworthy occasion, he held up a hand-lettered sign to the mother, in the presence of the child, that had the word “LIAR” printed on it.

The husband had stood by and simply acquiesced in the brother’s conduct on these occasions. The wife claimed that she should be sheltered from such conduct, and that it met the definition of “family violence” for the purposes of the B.C. legislation.

Although the court refrained from ruling specifically on the mother’s argument on this point, it did reproach both the husband and the brother’s conduct in the ruling, calling the latter “infantile, and exceedingly inappropriate”. In the context of examining the existing child care and custody routine, and in the course of revising those arrangements, the court made an order specifically directing the husband to restrain his brother from such further behaviour, for example by ensuring that the brother no longer attend at drop-offs/pick-ups and FaceTime visits and no longer do any filming in relation to the child and mother.

Do you think that the B.C. definition of “family violence” should be adopted in Ontario for Family Law purposes? What are your thoughts?

For the full text of the decision, see:

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.