Canadian Lawyer

Family Law Act's s. 1 definition of 'family violence' (a) hysical abuse of a family member, including forced confinement or deprivation of the P necessities of life, but not including the use of reasonable force to protect oneself or others from harm (b) exual abuse of a family member S (c) ttempts to physically or sexually abuse a family member A (d) sychological or emotional abuse of a family member, including P (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) ntentional damage to property I (e) n the case of a child, direct or indirect exposure to family violence I 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-ofcourt 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. Freedom and flexibility. The next generation of DIVORCEmate IN THE CLOUD. Preview now available. For more information check out our SUMMER 2013 e-News & e-Views divorcemate.com/library/newsletter70.pdf 1.800.653.0925 or 416.718.3461 sales@divorcemate.com • www.divorcemate.com www.CANADIAN L a w ye r m a g . c o m august 2013 49

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