Spotlight on child protection: Definitions and terms—“family violence”
November 4, 2020
BY Kevin Zakreski
This post is the first in a series that spotlights issues discussed in the Consultation Paper on Modernizing the Child, Family and Community Service Act. To read other posts in the series please click here.
Brief description of the issue
The Child, Family and Community Service Act employs the expression domestic violence, most notably in a key provision of the Act setting out the grounds for determining when a child needs protection. But the Act doesn’t provide a legislative definition of domestic violence. In contrast, the Family Law Act contains an extensive definition of family violence, which was explicitly developed as a common point of reference for participants in the family-justice system. Should the references to domestic violence in the Child, Family and Community Service Act be replaced with a defined term modelled on the Family Law Act’s expression family violence?
Discussion of options for reform
This issue for reform potentially poses two distinct elements for consideration.
First, there is the question of whether to retain domestic violence in the Child, Family and Community Service Act as a term without a legislative definition. This is essentially a yes-or-no question.
The status quo relies on the ordinary, everyday understanding of the expression domestic violence. It could be argued that this term is commonly understood and that it’s acceptable for purposes to which it is put in the Child, Family and Community Service Act. But an undefined term will always be seen as lacking precision in comparison with a term that’s given a legislative definition. The expression domestic violence has a significant role in an important section of the Act, which establishes the grounds for protection of a child. Clarity is a major concern in applying this section. Another concern with the term domestic violence is that it may be seen as outmoded. Domestic violence is increasingly being superseded by terms like intimate-partner violence and family violence. The latter term has already been put to use in the Family Law Act. An argument could be made that domestic violence is another term in need of modernization.
Second, there is the question of how to define any replacement term for domestic violence. This question only arises if a decision to depart from the status quo is made in response to the first question.
One obvious option is to use the legislative definition for family violence in the Family Law Act and to add that definition to the Child, Family and Community Service Act. This option would have the advantage of promoting consistency across legislation in British Columbia. It would also give readers of the Child, Family and Community Service Act access to the well-developed body of case law that has interpreted and applied the Family Law Act’s definition of family violence.
The potential downside of this option is one that has been encountered in earlier issues for reform considered in this chapter. There may be problems in adopting a term that was developed for one statute in a related, but distinct, area of the law and applying it to the area governed by the Child, Family and Community Service Act. The Family Law Act has both a definition of family violence and a detailed legal framework applying the term to court orders dealing with family violence. The Child, Family and Community Service Act lacks these features. But this Act must also address issues that don’t arise under the Family Law Act. These considerations might call for a definition that is modelled on the Family Law Act’s definition but is also tailored for concerns that arise under the Child, Family and Community Service Act, even if such an approach undercuts other goals, such as consistency across statutes.
The committee’s tentative recommendations for reform
The committee gave extensive consideration to this issue. It was concerned about the current state of the law. Because domestic violence isn’t defined in the Child, Family and Community Service Act its scope is unclear. Given that domestic violence appears in a key provision of the Act (setting out the grounds for when a child needs protection), there may be challenges with the vagueness of this term.
The committee was also concerned about retaining the status quo for the Child, Family and Community Service Act in the face of the advent of the Family Law Act, with its defined term family violence. The two Acts are currently out of sync both in the choice of term (domestic violence as opposed to family violence) and, more importantly, in the approach to defining that term (undefined versus a detailed legislative definition). In the committee’s view, this is an undesirable state of affairs.
With these points in mind, the committee gave the Family Law Act’s definition of family violence a careful examination. While the committee found much to admire with the definition, it did have concerns about the breadth of its reach and what this very broad conception of family violence would mean within the child protection system.
In particular, the committee was concerned about the aspects of the definition that related to financial abuse (“unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy”) and damage to property (“intentional damage to property”). Given the role a definition of family violence will play in setting out the grounds for protecting a child, the committee had reservations about including these forms of abuse in a definition that has such an impact on the actions that may be taken under the Act. It could have the effect of importing poverty into the grounds for protection. In the committee’s view, poverty shouldn’t be a ground for determining that a child requires protection.
The committee was also concerned about the open-ended nature of the Family Law Act’s definition of family violence (which introduces a list with the word includes). This approach allows for further development of the definition through court cases and opens up the possibility that an already-broad definition could be expanded even further in scope. In the committee’s view, such an approach isn’t appropriate for the child protection system. A closed list (introduced by the word means) would be a better approach.
In brief, the committee decided that leaving a key term in the Child, Family and Community Service Act undefined was a real problem for the legislation. Violence is an important issue and it should be addressed with a defined term. The Family Law Act provides a good model of such a definition. But some of the elements of its definition, while appropriate in family-law legislation, don’t translate well to child protection legislation. A legislative definition for the Child, Family and Community Service Act should be tailored to the purposes of this Act, in particular the important role it will play within the grounds for determining when a child needs protection. It is important to guard against an expansive definition that could have the effect of having more children placed in care. It is possible to develop a legislative definition that is broadly in accord with the Family Law Act’s definition of family violence but that also takes these distinct child protection concerns into account.
Finally, the committee noted that there may be challenges in choosing the best term or terms for its conception of violence and in integrating those terms into the sections of the Act that currently use the expression domestic violence. While the committee was primarily focused on the policy implications of its conception of violence, and was aware that decisions on legislative drafting will ultimately be in the hands of legislative counsel, it did think it would be helpful to set out its thoughts on this issue.
The committee discussed a number of replacement terms for domestic violence. It considered using family violence, but quickly rejected this option. In the committee’s view, if the Family Law Act and the Child, Family and Community Service Act each had legislative definitions of family violence that differed significantly in their details then confusion in practice would be the result.
The committee considered redefining domestic violence. In the end, it chose not to pursue this option because the term appears to be considered outdated.
The committee came to favour a combination of the terms violence and violence in the home. The committee noted that, standing alone, these terms individually raise some concerns. Violence appears to be very broad in its reach. Violence in the home, on the other hand, would on its face appear to limit the application of the legislative definition to violence that only occurs within the family home. This interpretation would introduce a limitation on the concept that doesn’t appear in the way the Act currently uses the term domestic violence. In two of the key provisions using the expression domestic violence the Act goes on to add the phrase “by or towards a person with whom the child resides.” This phrase makes it clear that domestic violence isn’t limited to violence that takes place within the home. In the committee’s view, this concept should be preserved in the implementation of its defined terms. The committee believes that it can achieve this result by defining the term violence and using the expressions violence in the home and violence by or towards a person with whom the child resides in the presence of a child in the substantive provisions of the Act.
The committee tentatively recommends:
The Child, Family and Community Service Act should be amended to add the following definition: “ ‘violence’ means
(a) physical abuse, 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,
(c) attempts to commit physical or sexual abuse,
(d) psychological or emotional abuse, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, and
(ii) stalking or following, and
(e) in the case of a child, direct or indirect exposure to violence.”
The Child, Family and Community Service Act should be amended to add the following definition: “ ‘violence in the home’ means violence.”
The Child, Family and Community Service Act should be amended by striking out “domestic violence” wherever it appears and substituting
(a) “violence in the home, or”
(b) “violence by or towards a person with whom the child resides in the presence of a child.”
