Violence Against Women and the B.C. Family Law Act: Early Jurisprudence

Abstract

British Columbia’s new Family Law Act (FLA) – in force since March 18, 2013 – holds significant promise in the sense that it deals explicitly with family violence. Under the previous family law statute, judges were able to take family violence into account, but were erratic in doing so and lacking in legislative guidance regarding how to do so. In contrast, the FLA requires judges to consider family violence as a factor under the best interests of the child (BIC) analysis. It offers a broad definition of family violence and specifies factors that judges must consider in assessing the impact of family violence. Children’s physical, psychological and emotional safety, security and well-being are prioritized in the best interests of the child test. The focus of this article is to review case law up to December 2015 and to highlight some concerns. We ask to what extent judges are taking account of the realities of women’s lives in their assessments of family violence, and to what extent courts are still relying on faulty assumptions about the nature and impact of spousal violence. In particular, we focus on the impact that family violence has on parenting arrangements and orders. We first examine the interpretation of the new definition of “family violence” and then proceed to some evidentiary issues. We then consider how guardianship orders have been influenced by family violence and how family violence is dealt with in these judgements. We suggest that normative assumptions about the value of shared parenting can detract from the significance accorded to determinations of family violence.

Keywords: Family Law Act, British Columbia, family violence, BIC