Written by Val Hemminger, Lawyer and Mediator
Violence in the family? What about false allegations (or exaggerated allegations) and making decisions about children?
This can be a significant concern. Just recently our firm was involved in a family law matter where one party (we will call her Lisa) was making an allegation against the other (we will call him Joseph) that there was violence in the family and this was the reason why Lisa left Victoria and moved to Vancouver with a 4-year old child (who we will call Ben). Lisa moved away with Ben and Joseph tried to get her to move back. When Lisa refused, Joseph applied to court to get Lisa to return Ben.
Lisa said the reason why she had to leave was due to the fact that it was in the “best interest” of Ben due to the actions perpetrated by Jason.
Did Jason strike Lisa, did he sexually abuse her, did he threaten her, did he confine her, threaten her, threaten her pets, did he abuse her property, did he deprive her from the necessaries of life? Jason did not. Lisa did not say Jason did any of those things.
What she did say was that he was “controlling” in a significant way. Lisa cited that her and Jason argued about money and did not get along in other ways. That was pretty much as far as her allegations went.
Does arguing about money constitute someone being “controlling” to the point where that “controlling” attitude is considered violence?
Does such behavior mean there was violence? The Supreme Court Justice who heard this case thought that “controlling” did not constitute family violence. In fact, he said that characterizing such facts as the ones Lisa put forward as violencedid people who actually did experience family violence a disservice. It was also not the intention of the legislation.
Prior to March 2013, the Family Law of British Columbia’s legislation did not codify the as something to be concerned about when making decisions about children in family law matters. Lawyers had to rely upon the common law (what judges said in the past about this issue). This was often frustrating for parents who had either experienced violence themselves or experienced violence directed at or occurring in front of their children.
Now our new legislation demonstrates that violence in the family is a problem and that it will be taken into account when assessing what is in the best interests of a child. In the event of a dispute, when making decisions about which parent will take over the primary responsibilities of parenting, the courts will consider violence in the family that has occurred.
The courts will consider the impact of any family violence on the child's safety, security or well-being and whether it has been directed toward the child or another family member. In addition, whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs.
The BC Family Law Act defines violence in the family as:
What Lisa did not understand is that we have to be careful not to get violence and typical family dysfunction or other problems mixed up. Violence in the family is a serious problem facing many children and their parents. We need to tread carefully about what we constitute as violence and what is not. Just because something is not cool does not necessarily make it violent.
It looks like Lisa was not able to use the definition in a way that was not meant to be. Ben has returned to Victoria to be raised by both his parents, albeit not under the same roof anymore. All things being equal, it is in Ben’s best interest to be raised near his Dad.
Some critics of the BC Family Law Act are concerned that false or exaggerated allegations will occur more frequently due to this change in the legislation. Such a trend would be a significant problem and would minimize the actual impact that real violence has on children and their parents. Time will tell how this pans out as cases get considered by the courts.
If you have a legal matter on this or any other topic that you would like to discuss with a lawyer, please contact us for a consultation.
Return from Violence in the Family