An ‘expansive’ interpretation of family violence

An ‘expansive’ interpretation of family violence
Illustration: Ashley Mackenzie
Unco-operative behaviour by parents fighting legal battles isn’t unusual, but a “remarkable” ruling has determined it can amount to “family violence.” British Columbia’s Family Law Act, which came fully into effect in March 2013, defined “family violence” for the first time under provincial law, to cover a range of psychologically, emotionally, and physically damaging actions. The definition of “family violence” is “the one area where B.C. is ahead of any other province in terms of its legislation,” asserts John-Paul Boyd, family lawyer at Aaron Gordon Daykin Nordlinger LLP.

Its definition was interpreted broadly in M.W.B v. A.R.B, which said a 12-year-old boy’s principal residence should be with his father, due to his mother’s
“litigation conduct” relating to the sale of a property and to parenting arrangements. Supreme Court of British Columbia Justice Neill Brown’s decision, released May 21, followed a series of actions on the part of the mother — the defendant — that Brown criticized as “intransigent and obstructive.”

The couple had a high-conflict divorce trial in August 2011, following the breakup of their 18-year marriage. The children were living with their mother in southeastern B.C. and the father was ordered to pay $900 a month in child support. The claimant, “an exemplary father,” according to Brown, had to move to Vancouver out of financial necessity. The pair disagreed over the listing price for a jointly owned commercial property they needed to sell to stabilize their finances.

Between June 2010 and January 2013, the mother consistently thwarted the father’s attempts to sell the property for a realistic price, resulting in a string of legal actions. Examples of her “oppositional behaviour” listed in the 50-page decision included changing the locks, refusing to provide keys, ignoring e-mails, and failing to reveal in a timely fashion that her solicitor had placed a lien against the property for legal fees. On one occasion, the father travelled 33 hours by bus to see the children over the weekend, only to have to spend five hours finding a locksmith so an appraiser could value the property.

The delays in selling the property occurred at the same time the market was declining. This meant it could have sold for $399,000 but was eventually sold for just $150,000, according to Brown’s ruling. Taking account of the debts that had accumulated in this period, the sale left an equity loss of $79,000. “Had the [mother] acted more reasonably, with just a modicum of cooperation, the parties, between them, easily could have realized an estimated $600,000 from all the family assets, divided it, paid their debts, and re-established financial stability,” said the ruling. “This was a heavy and unnecessary capital loss for a young family to suffer; one that was surely avoidable.”

The father also had to argue for the right to see his 12-year-old son and teenage daughter one-on-one, after the mother ignored a court access order. The “needless litigation” led the claimant to receive counselling for stress, precipitated a “very painful medical condition that has needed surgical procedures,” and hindered his capacity to spend time with the children, according to Brown.

In weighing whether to grant the father’s application for principal residency for his son, Brown turned to the Family Law Act, which replaced the Family Relations Act. Under s. 38 of the new act, a court must consider the presence, and seriousness, of family violence. Brown’s ruling stated: “I find the [mother’s] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence.”

Geeta Bains, Canadian Bar Association-B.C. family law section co-chairwoman for Vancouver, says the case “sets out some guidelines for defining family violence, but went beyond what most lawyers, as well as a lay person, would think of as family violence.” She says she will be highlighting the increased importance of good litigation conduct in discussions with clients.

It is not unusual for a parent’s conduct to be considered by a court if it substantially affects the best interests of the child, as it may be perceived as predictive of their future behaviour.

This was seen in B.D.N v. D.A.N, a 2003 B.C. Supreme Court decision in which sole custody was granted to a plaintiff, against a mother who had formerly gone “into hiding” with her children. Justice R. Dean Wilson said: “Children’s lives are not laboratories to provide a proving ground, by trial and error, for the determination of the capacity of a parent.”

If M.W.B had been tried under the old legislation, the defendant’s litigation conduct would have been considered, but it probably “wouldn’t have played as big a role,” Bains contends. Her co-chairwoman Annie Kaderly says family lawyers are looking to the courts to “delineate the boundaries” of the Family Law Act’s “fairly broad definition of ‘family violence.’”

It is also interesting that Brown, in condemning the defendant’s litigation conduct, used an objective standard to decide she had improperly used the court system, says Kaderly. The decision states the respondent “knew or ought to have known the impact her conduct was having on the claimant’s financial situation.” Kaderly explains: “It’s not simply that the respondent was or was not aware of the impact her actions had on the claimant’s finances, but whether or not she should have known.”

Another change under the act is the way it instructs the court to consider only the best interests of a child, whereas the old legislation stated that the interests of the child were of “paramount” interest. Boyd says in considering the child’s best interests, it is striking that Brown felt the need to review each of the factors listed in s. 37(2) of the new act, covering areas such as the child’s health and emotional well-being and their need for stability. While the old act also required judges to do this, “nobody ever did,” he states, calling the decision “remarkable” due to the way it equates the defendant’s litigation conduct with family violence, and applies that to the consideration of what is in the child’s best interests.

Boyd and Bains agree the behaviour of the defendant, while quite clearly falling into the “challenging” category, is not entirely out of the ordinary for a party appearing in the family courts; these cases are notoriously charged, and the involvement of children adds an extra emotional punch. It seems therefore likely the ruling could be applied to many other family law cases.

However, as both the litigants in this case were, by this point, self-represented, there was no prospect of lawyers tempering any actions that could be construed as litigation harassment or misconduct. Nor does it appear the parties took part in out-of-court mediation in the run-up to the February hearing.

Bev Churchill, a mediator at the Okanagen Settlement Centre, says the case provides “another war story that settlement lawyers can use about the downside of parties not addressing the bigger picture perspective.”

Churchill believes the ruling gives lawyers food for thought, not only about the “expansive” interpretation of family violence, but about how they can prevent cases from actually getting to the stage where it becomes an issue.

Family Law Act’s s. 1 definition of ‘family violence’

    (a)     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
    (b)     Sexual abuse of a family member
    (c)     Attempts to physically or sexually abuse a family member
    (d)     Psychological or emotional abuse of a family member, including
             (i) Intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property
             (ii) Unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy
             (iii) Stalking or following of the family member
             (iv) Intentional damage to property
    (e)     In the case of a child, direct or indirect exposure to family violence

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