| |
|
|
|
|
| |
|
|
|
This chapter will provide a brief introduction to the differences between criminal and tort law, and review the ways that criminal law, tort law and the Family Relations Act can address issues of family violence. It will also briefly look at some child protection issues. Introduction The two main areas of the law are the common law and the criminal law; there are plenty of others, but these are the two big ones. Tort law is a branch of the common law, as is family law. Other branches of the common law include contract law and the law on negligence, for example. Criminal law mostly deals with breaches of regulatory laws, laws created by the government which control how we do things and set out the things we're not supposed to do. Legislation that falls under this heading includes the Criminal Code, the Controlled Drugs and Substances Act and the Food and Drugs Act. Criminal law deals with a person's offences against the rules of the state. Tort law, on the other hand, deals with a person's "offences" against other people, such as personal injuries, motor vehicle accidents, trespass, negligence, assault and battery, or occupier's liability. Generally speaking, these sort of civil offences aren't set out in laws the way that the rules against robbery are set out in Criminal Code, they're creatures of the common law, the law that the courts have created. The legal definition of a tort is "a breach of a duty owed by someone to some one else which gives rise to a cause of action." O.J. Simpson: An Explanation That explanation of the differnce between tort law and criminal law was a bit technical. Another way of looking at it through the example of O.J. Simpson. If you recall, O.J. was tried twice for the same alleged offence. First, he was criminally tried for an alleged murder. Second, the family of the victim sued him in civil court for the alleged wrongful death of the victim, or something to that effect. Essentially, the criminal trial was because of O.J.'s alleged crime of killing someone contrary to the the criminal law (his alleged crime against the state) and the civil trial was because of his alleged tort offence against the family of the victim (his crime against the family). The most important point here is that the one thing O.J. was alleged to have done gave rise to both the criminal charges and the family's tort claim — two separate actions, one in criminal court and one in civil court — and both were based on the same wrongful conduct. If you are punched by someone, for example, that person's conduct may result in both:
The criminal law punishes someone found guilty of breaching the laws of the land by imposing fines, a jail sentence, both a fine and a jail sentence, or imposing terms or conditions on the guilty person's conduct, like a restraining order. The goal of civil law, however, isn't to "punish" someone who has breached a duty owed to someone else, the goal is to compensate the person who suffered the harm for the harm he or she suffered. Normally, this takes the form of "damages," a financial award intended to account for things like pain and suffering, lost wages, rehabilitation and medical costs, and so forth. Damages are an attempt to provide monetary compensation for the harm suffered as a result of the wrongful act. Back to the top of this chapter. The Criminal Code The Canadian Criminal Code is the statute that sets out the bulk of the criminal law. The Criminal Code does not specifically address family violence, but there are a number of possible criminal offences which could apply where there has been family violence, including:
In order for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 9-1-1 call. The police will come to your home and interview you and anyone else who witnessed the event. After the police have conducted their investigation, the lead officer sends Crown counsel a document called a "Report to Crown Counsel" which, among other things, sets out the witnesses' statements and the officer's recommendation as to whether charges ought to be laid or not. (Crown counsel are lawyers who work for the government and prosecute criminal offences.) Crown counsel then decides whether there is enough evidence to lay charges; if the Crown reviewing the police file thinks there is, the Crown will approve the charges and the matter will be set for a hearing before a Judge. Information for Victims If you have been or are the victim of family violence, call the police; nothing will happen until you do. When the police attend, they will, in all likelihood, take the abuser into custody, and he or she will stay there until the a judge is able to speak to the individual. Most of the time, the individual will be released from custody until his or her trial date following this brief hearing, and the release will be on specific terms and conditions set out in a document called a Recognizance. It is important that you call the police right away, or fairly soon after the violence, since some users of this website have reported situations where, after reporting the incident, the police have refused to take any action on the ground that the report was made out of malice or spite following the breakdown of the relationship. You should tell the police — and perhaps Crown counsel — about all of your concerns with the abuser, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether the abuser has ever been arrested for similar problems in the past. You will want your concerns addressed in the Recognizance on which your partner will be released from custody. Among other things, the court can require that your partner:
Finally, ask that the police and Crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the Recognizance your partner is released on. Breaching the Recognizance If your partner doesn't follow the terms of his or her Recognizance, call the police. They won't be aware that there's a further problem unless you let them know. Counselling Resources and Safe Houses Sometimes calling the police isn't enough. Sometimes you may need counselling to help you cope with the violence, and, in particularly bad situations, you may need a safe place to stay with your children until the criminal proceeding can be dealt with. A number of organizations exist that help people deal with the effects of family violence, such as Battered Womens Support Services in Vancouver. Some provide crisis line help, others provide free counselling services. Most organizations keep a list of psychologists who specialize in family violence and related issues that they can refer you to. Some of these organizations are listed in the "Resources & Links" section of this website; you can also find emergency numbers for crisis lines, sexual assault and spousal assault services at the very front of your white pages telephone book. Depending on how serious the circumstances are, you may feel that you have no choice but to leave the family home. Safe houses are secret homes that you and your children can go to, with unlisted phone numbers and some in-house supervision. A number of safe houses and the organizations that run them are listed in the "Resources & Links" section of this website; you should also check your telephone book. Reconciliation If you want to get back together with your partner, contact him or her, or stop the criminal process, you must speak to Crown counsel. You cannot change the terms of your partner's Recognizance or drop the charges yourself, only Crown counsel can do that. Further, if you do initiate contact with your partner, you could be making matters worse since you'll be inviting him or her to break the terms of the Recognizance and potentially initiate further criminal charges against your partner. Information for Accused Persons There is a standing policy of the provincial Attorney General that incidents of spousal assault are to be treated as serious crimes. As a result, if your partner accuses you of assault, this policy requires that you be arrested and taken into custody. You will be taken to jail. On the next court date, you will appear before a Justice of the Peace or a Judge for a bail hearing. If you are arrested on a Friday, this will likely mean that you'll spend the weekend in custody. At the bail hearing, the Judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and will spend the time until the hearing of the charges against you in jail. Typically, these conditions are:
Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the victim's home, a requirement that you not possess firearms or other weapons, and so forth. The conditions which the Judge requires will be written down in a document called a Recognizance. It is critical that you follow the terms set out in your Recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your Recognizance will remain in effect until the trial or until they are changed at a hearing before trial.
Lawyers and your Bail Hearing You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children. Whether you're able to get one or not, make sure you speak to duty counsel before your bail hearing. ("Duty counsel" are lawyers paid by the Legal Services Society to give advice and limited help to people who have been arrested and do not have legal representation.) Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing, however if the number of people stuck in cells is high, you may not have that much time with him or her. The point of all this is that you will doubtless want to ensure that the terms of your Recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work. Under certain circumstances, you may not be released from custody, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the offence, previous related criminal convictions, and the opinion of the Crown as to the circumstances of the offence. Reconciliation Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the victim will want to "drop the charges." A couples of points:
The Consequences of Criminal Charges Among other things, criminal charges relating to family violence can lead to:
The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence. Back to the top of this chapter. Tort Law Unlike criminal matters where the Crown handles everything, a claim in tort must be advanced and prosecuted by the victim. In family law, tort claims are usually included with the other relief asked for in the Statement of Claim or Counterclaim, although a tort claim can be made by itself, without other claims relating to things like divorce , custody and so forth. (Note that tort claims can only be addressed by the Supreme Court; the provincial courts do not have the jurisdiction to deal with tort claims.) Also unlike criminal matters, the remedies the victim seeks aren't protective (in the sense of no-contact and no-go orders) or punitive (in the sense of jail time, criminal records and fines). The remedy the victim seeks is restorative: the victim seeks an award of financial damages to "make good" the harm he or she suffered and it's consequences. Damages may be awarded for, among other things, the following:
The final kinds of damages which can be claimed are called "punitive damages" and "aggravated damages," both of which are actually intended to punish the abuser for his or her conduct rather than to compensate the victim for his or her loss. Aggravated damages are awarded when the wrongful act took place in humilating or undignified circumstances. Punitive damages are awarded when the wrongful act deserves additional punishment because it was of a "harsh, vindictive, reprehensible and malicious nature." The most common tort claim in situations of family violence is "assault and battery." ("Assault" technically means wrongfully threatening to harm someone, and "battery" means wrongfully attacking and harming someone.) The Disadvantages of Tort Claims This segment is not meant to discourage victims from making tort claims for damages resulting from family violence, it is only meant to bring to readers' attentions the downside that can sometimes accompany tort claims. Firstly, you will, in all likelihood, have to hire a lawyer if you want to make a claim in tort against your partner. The law governing tort claims is not set out in a statute, like the Family Relations Act or the Negligence Act, it's all composed of case law, as a result of which it can be terribly complex to present your case. Lawyers, of course, are expensive. While you may get some of your legal costs awarded to you if you're succesful, that only happens at the end of the day after you've already paid a few months' or a few years' worth of bills. Secondly, even if you're successful, your partner must have some money or other assets out of which he or she can pay your damages you win. It's no good to spend tens of thousands of dollars on legal fees only to find that your partner has no way to pay your award. This is called a "dry judgment." On this last point, however, the 1997 Supreme Court of British Columbia case of Megeval v. Megeval should be mentioned. In that case, the effect of the court's judgment was to divide the family assets equally between the parties, however the amount awarded to Ms. Megeval for her tort claim took up the whole of Mr. Megeval's one-half share — Ms. Megeval got it all. Sometimes there are ways to be compensated. Thirdly, you will have to testify about the family violence and the effect it had on you in a very open, honest and personal manner. You will have disclose your medical and counselling records, if there are any. You may also have to submit to medical and psychological examinations, both to prove your claim and sometimes at the demand of your partner. All of this can be very trying and sometimes humiliating, for the obvious reasons. Limitation Periods A "limitation period" is a deadline by which a claim must be made and an action started. After the applicable limitation period has expired, you cannot make your claim. In British Columbia, the limitation period for actions based on personal injury — which is what a tort claim based on family violence is — is two years. If your spouse assaulted you on 1 January 2003, you won't be able to advance your claim after 2 January 2005. There are, however, some exceptions to this rule:
Awards The amount of the damages that a court may award for tort claims based on family violence always depends on the circumstances. Sometimes the assault is of a minor nature with little resulting harm. Sometimes the abuser can sucessfully argue that the violence was consented to, or that the violence resulted from self-defence. Sometimes the court will find that the family violence was reciprocal in the relationship, in other words, that it went both ways. Sometimes the amount of damages awarded are low simply because the abuser doesn't have the financial resources to pay anything more. In any event, here are some awards that the courts have made for assault and battery in a family context:
(These cases have been included to give users of this site a general idea of how the courts have treated tort claims based on family violence in the past. You should not rely on these cases to fix a dollar amount to your claim without reading each case to understand the circumstances in which the violence occured and the award was made, and without doing a fair bit of other research on your own.) Back to the top of this chapter. The Family Relations Act The Family Relations Act sets out a fairly broad menu of restraining orders. Restraining orders under the Family Relations Act can be very helpful and can provide the same kind of protection as a criminal Recognizance does, discussed above. The real difference between restraining orders made under the Family Relations Act and those made under the Criminal Code is that a breach of a criminal Recognizance is itself a criminal offence subject to additional punishment, while a breach of a Family Relations Act restraining order is a breach of a civil order which may only constitute contempt of court. Contempt of court is discussed in the chapter "Other Family Law Issues > Enforcing Orders & Agreements." Finally, it is important to know that many of the restraining orders under the Family Relations Act can be backed up by a "peace officer enforcement clause," a term which requires the police to actively enforce the order and gives them the authority to arrest a person who has breached the order. The restraining orders available under the Family Relations Act are:
This relief is available to both unmarried couples, including common-law couples, and married spouses. Note that these orders aren't intended to address the fundamental issue of the family violence, they are intended to provide some protection to persons who have been or could potentially be victims of family violence. Note also that, like tort claims, you must make an application for these orders yourself, the court won't do it for you unless you ask. Back to the top of this chapter. Child Protection The provincial Ministry for Children and Family Development is authorized to protect children from neglect and harm under the Child, Family and Community Service Act. Section 2 of the act sets out the guiding principles of the legislation: This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (a) children are entitled to be protected from abuse, neglect and harm or threat of harm;(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;(d) the child's views should be taken into account when decisions relating to a child are made;(e) kinship ties and a child's attachment to the extended family should be preserved if possible;(f) the cultural identity of aboriginal children should be preserved;(g) decisions relating to children should be made and implemented in a timely manner. Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the Child, Family and Community Service Act are the safety and well-being of the children. Reporting Children to the Ministry Certain people, including doctors, teachers, psychologists and psychiatrists, have a duty to report children in need of protection to the Ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the Ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the Ministry for Children and Families. Once a child is reported as being at risk, the Ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint. The Consequences of a Report If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:
Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort. Information for Reported Parents Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the Ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, the majority of these claims are unfounded. Whether the complaint is justified or not, you must co-operate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers and daycare providers who can say that the child isn't at risk and hasn't been abused. You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue. Once the social worker has concluded that there is an problem, there's very little you can do to get the worker out of your hair except do what he or she wants. It is critical that you comply with his or her "suggestions" about things like parenting courses, help from outside agencies, homemaking services and so forth. If you don't do the things the worker "suggests," you may be flagged as "resistant" to the remedies the worker suggests. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child. The impact of a report to the Ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if other parent reported you to to Ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to co-operate with you in raising your child. Information for Parents Making a Report Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the Ministry. There are a few reasons for this. Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether. Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing him or her to characterize you as mean-spirited and vindictive, and willing to stoop to anything to disrupt the family. Worse, the other parent may be able to claim that you were using the Ministry to make an end-run around the court process. Thirdly, you run the risk of inviting the Ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment. What Happens if a Problem is Found If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to co-operate with the Ministry, the Ministry may begin court proceedings. If the Ministry has taken a child out of the care of his or her parents, the Ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the Provincial Court (Child, Family and Community Service Act) Rules. When your Child is not Removed Among other things, the court can make, at the request of the Ministry, protective intervention orders for the following relief:
The Ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the Ministry's application. You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended. When your Child has been Removed If the Ministry has removed a child from your care, the Ministry is required to set a "Presentation Hearing" within 7 days, at which the Ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of proctection and was properly removed from the home. You will be served with notice of the Presentation Hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position. At the Presentation Hearing, the court may make interim orders for the following relief :
It is important to know that at a Presentation Hearing the Ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a Presentation Hearing since the case the Ministry must prove is so slight. Within 45 days of the Presentation Hearing, assuming the Ministry was successful at that hearing, a "Protection Hearing" is held. At this hearing the court may direct the parties (you and the Ministry) to attend a Case Conference, if you and the Ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing. A Case Conference is a relatively informal meeting between you, the Ministry's representative and the judge. Sometimes the social worker also attends. If you and the Ministry cannot negotiate and agree on the terms of an order about your child during the Case Conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the Protection Hearing. A Protection Hearing is a formal hearing before the judge. The Ministry will attempt to prove that the Order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the Ministry's witnesses. You will then be able to present your own case and argue about why the Ministry's request is not justified. Remember that at the Presentation Hearing, the Ministry only has to prove that there is a likelihood that the child is at risk and that course of action sought by the Ministry is reasonable. At the Protection Hearing, however, the Ministry must prove that it is more probable than not that the child is at risk and that course of action sought by the Ministry is reasonable. This is a lot more difficult to prove than a mere "likelihood" of risk. At the Protection Hearing, the court may make orders for the following relief:
Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommnded. At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the Ministry about things like special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiences that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued. Back to the top of this chapter. Site Navigation
Go back to the start of this chapter. Section Menu
The Legal System · Alternatives to Court · Children · Child Support · Spousal Support Resources Menu
Site Map & Index · Legislation · Resources & Links · Definitions · Feedback Please ensure you take the time to read these important legal notices. |
|
