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In Family Law, How Far Should the Concept of “Violence” Go?

 

family violence

In Family Law, How Far Should the Concept of “Violence” Go?

In one of my more popular posts from a while ago In Family Law, Can Text Messages Amount to “Violence”?   we discussed a case called Menchella v. Menchella  http://canlii.ca/t/ftmth in which the court concluded that the husband’s relentless and abusive texting to the wife amounted to “violence” for the purposes of the Ontario Family Law Act. This finding, in turn, entitled the court to grant the wife exclusive possession of the matrimonial home.

The concept of “violence” has been similarly broadened in British Columbia, this time in a custody dispute. In a recent 50-page decision called B. (M.W.) v. B. (A.R.), the court found that the wife’s “litigation approach” to the family dispute between her and the husband itself amounted to “family violence” for the purposes of that province’s Family Law Act. (Under B.C. law, the presence of “family violence” is one factor that a court must take into account in assessing the best interests of the child. A court that finds such family violence exists is then required to consider a number of additional listed factors.) The court relied on this finding to justify awarding custody of the couple’s 12-year-old child to the father.

The litigation between the couple was certainly acrimonious, and featured an extraordinary degree of conflict both before the trial and after. However, the wife was particularly obstructionist in her approach to both the separation and the litigation that resulted from it: Not only did she launch needless litigation and routinely disobey court orders, but she also continually thwarted the husband’s reasonable attempts to sell some commercial property that they owned. This included ignoring e-mails, refusing to hand over the keys, and changing the locks in order to block the appraiser’s access to the property. During the latter incident, the husband had to spend 5 hours looking for a locksmith so that the appraiser could be let in; this was on a weekend where he had travelled 33 hours to be able to see his child.

All of this resulted in the husband having to incur significant legal expenses, which the court said had “used up much of his emotional and financial resources.” It also observed that “The [husband] has suffered financial hardship, much frustration and stress-related illness that I attribute to the [wife’s] conduct.” The economic security and emotional and psychological well-being of the child had been impacted as well.

Viewing the wife’s conduct as a whole, the court drew the legal conclusion that it had reached a level that amounted to “family violence” under the B.C. legislation. That definition expressly included concepts such as “psychological or emotional abuse of a family member”, “intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property”, “intentional damage to property”, and “direct or indirect exposure to family violence” by a child. It ordered that the child’s principal residence should be with the husband.

Have the B.C. and Ontario courts gone too far in defining “violence” this way? What are your thoughts?

For the full text of the decision, see:

M.W.B. v. A.R.B., 2013 BCSC 885 (CanLII) http://canlii.ca/t/fxjb5

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. To learn more visit us at Russell Alexander.com

What’s Happening With Family Law Reform?

What’s Happening With Family Law Reform?

In my last Blog post New Family / Criminal Court in Ontario — Still in Its Early Dayshttp://bit.ly/pEwKxf  I mentioned the implementation of a new pilot project involving the implementation of a hybrid form of family / criminal court in Toronto, called the Integrated Domestic Violence Court. Although it is still in its early stages, the theory is that this new court may be a more efficient means for hearing certain domestic violence cases in Ontario.

But not all such law reform measures – no matter how worthwhile – actually see the light of day as quickly as they might. Exactly a year ago, the Law Commission of Ontario (LCO) released a Report on the Family Law Justice System, titled “Voices from a Broken Family Justice System: Sharing Consultations Results.”

This 83-page report, which was based on in-depth interviews with social workers, lawyers, judges, counsellors and individuals involved with the family law system, focused on the “entry points” in to the family law justice system in the province. In particular, it aimed to examine the early stages of problem-solving in a family problem or conflict, focusing on where people go when faced with such challenges. These include schools, workplaces community-based organizations, mental health services, and legal and police services. The LCO conducted 49 individual or group consultations meetings, in person or by telephone, and also received written submissions by e-mail, mail and on-line survey.

Those who provided input recommend the reform in connection with the delivery of family services, including:

• the level of confidentiality and type of expertise necessary to solve family challenges and problems;

• whether services should be voluntary or mandatory;

• how legal culture influences the relationship between lawyers and users, between lawyers and other professionals, and between judges, users and other professionals;

• the need for assistance in navigating the family justice system; and

• a better response to children and youth in the family justice system.

The consultations revealed that both service users and workers had differing experiences at various family justice entry points, especially in various provincial regions. These involved linguistic, cultural, gender and economic components, and demonstrated that there was a lack of services and a lack of awareness of available services beyond entry point level.

To quote from the LCO Report:

“In short, the LCO public consultations indicate that prevention and early intervention, through the development and better management of entry point services, can help resolve family challenges and problems in a more effective way and prevent solvable problems from becoming unsolvable. Consultation participants repeatedly said that “they wished they had known this and that earlier” and “they wished they had been directed to the right service earlier”.

Even though the Consultation Paper is now a year old, the unfortunately reality is that the Ontario family law system as a whole has not improved very much in the time since. Certainly, there have been some improvements: some regions in Ontario have implemented sliding-scale family services, or have employed technology to reduce the cost of such services. These measures have incrementally increased the accessibility of the services to users.

Also, as I mentioned in another prior post New Process Mandatory for Divorcing Spouses in Ontario, http://bit.ly/q7VuCt   Ontario has introduced a pilot project in some municipalities that requires parties in contested family matters to attend a Family Information Session, to obtain information about the effects of separation and divorce, options relating to dispute resolution, legal issues, court process and the various avenues for support that are available in the community. Whether or not this will benefit the parties to a family dispute still remains to be seen.

However, for the most part, change to the system has come slowly: family-related government services are still not as widely promoted as they could be. More importantly, the basic perception amongst the parties to even the most routine family dispute is that courts are backlogged, procedure is labyrinthine, and that the litigation process is prohibitively costly.
Hopefully this will change sooner than later.

For a copy of the Law Reform Commission of Ontario Consultation Paper, reference: http://bit.ly/pdedDv

 
For more information on the Ontario Mandatory Information Program (Family Information Sessions), reference: http://bit.ly/omyz4l

New Family / Criminal Court in Ontario — Still in Its Early Days

New Family / Criminal Court in Ontario — Still in Its Early Days

In a ground-breaking move for the Canadian justice system, effective June 10, 2011 an Ontario pilot project has merged the hearing of Family Court cases and criminal domestic cases. The Integrated Domestic Violence (IDV) Court meshes the functions of the criminal court at Old City Hall in downtown Toronto with the Family Court located at 311 Jarvis.
The concept is that the hybrid court will be more efficient, in that it hears both family and criminal matters involving the same parties and stemming from the same family relationships. Although the two types of cases are treated distinctly in terms of procedure, in the IDV Court both kinds of cases are heard by the same judge, in a single courtroom. The philosophy behind this innovative structure is that it will result in fewer court attendances, an avoidance of contradictory court orders, and overall a more efficient procedure.

The IDV Court hears only those family cases that involve domestic violence and give rise to issues relating to custody, access, child support, spousal support, and the granting of restraining orders. It does not hear issues relating to divorce, division family property, or child protection. The criminal matters under its potential ambit are restricted to those that would otherwise have fallen under the Old City Hall courthouse’s jurisdiction. The IDV Court also has a dedicated Crown counsel, staff dedicated to victim and witness protection services, and its own Community Resource Worker, who is responsible for directing parties to various available services such as anger management and addiction programs.
So far, the IDV Court has been slow to take off: since its official launch in the summer, scheduled hearing dates have been few and far between. This may be because the threshold for a particular party’s/litigants’ eligibility to have their matter heard in the court is quite strict, and includes geographical limitations which will rule out the large majority of those litigants who would otherwise be interested. Also, both parties to a dispute must consent to having their matter heard in IDV Court. Finally, the slow start may also be a result of lawyers and litigants being reluctant to avail themselves of this new and novel form of hybrid judicial body.

Still, it is hoped that (if successful), the IDV Court will be the model for similar courts across Ontario and perhaps across the country.

For more information, see the Ontario Courts’ webpage at: http://www.ontariocourts.on.ca/ocj/en/idvc/

5 Things You Should Know About Family Violence

Traditional mediation or counselling with your spouse may not be appropriate in these circumstances. However, in some provinces or territories, specialized counselling procedures have been developed to support couples when there are concerns about violence.

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