LWSO 335- Final Exam Flashcards
Calgary Legal Guidance
- public legal education
- Criminal, immigration, family violence and civil matters, all except family violence require proof of low income status.
- Family law program for survivors of domestic abuse or intimate partner violence.
- holistic approach, lawyer and advocate teams with referrals to social agencies and support.
- Deal with civil issues and all forms of relationships
Issues Arising on Relationship Breakdown
Criminal v.s Civil
- warning signs such as physical, sexual, digital, psychological/verbal, financial and spiritual covered in civil court
- Criminal: physical/sexual, uttering threats, assault, assault causing bodily harm or with a weapon,
Cycle of Violence
- phase 1: tension building. victim minimizes problem as batterer increases threats.
- phase 2: abusive incident. batterer is unpredictable, losing control and highly abusive. victim traumatizes and gets blamed.
- phase 3: honeymoon period, batterer is loving and unapologetic. manipulative. reconciliation. eventually phase 3 gone over time
Protection Against Family Violence Act
- to prevent and protect victims. provides an immediate period of safety to victims
- Emergency Protection Order, Queen’s Bench Protection Order, Warrant permitting Entry
- Family member definition: married partners + kids, adult interdependent’s residing together or have resided together + kids, related by blood, marriage, adoption or AIP, parents regardless of marital status or living situation, relationship of care and living together DOES NOT INCLUDE CASUAL DATING/CASUAL PARTNERS.
Emergency Protection Order
-Protection Against Family Violence Act
-no notice required
-immediate protection of claimant
-may grant order even if there are previous orders in place, criminal charges, move out, return or go to shelter
-civil remedy, apply to Justice of Peace or Provincial Court Judge
-Must be a family memebr
-Must be reviewed by Court of Queen’s Bench within 9 days
-Doesn’t apply to FN unless adopted by band leader
-Very quick
-Applies to property damage (own
property) if done to intimidate can restrain respondent from contacting claimant, give claimant exclusive occupation of residence, direct removal of respondent from residence, direct police to seize
weapons that were used
-can’t be used for permanent possession of the home or children
-don’t have to be living in same
residence
-does not require proof of purpose to
intimidate or harm
-effect on other family members
recognized (e.g., children)
-includes stalking
Queen’s Bench Protection Order
-Protection Against Family Violence Act
-civil remedy
-usually need a lawyer
-more extensive than EPO and in addition to EPO remedies, can direct respondent to pay monetary
losses incurred as a result of the
family violence (e.g., counseling)
-Court can direct respondent but not
claimant to receive counselling
Bill 204
- Residential Tenancies Safer Spaces for Victims of DV Act
- 28 days notice , certificate from designated authority
Civil Restraining Order
- Court of Queen’s Bench
- civil remedy
- Usually need a lawyer, low income: CLG
- on notice to respondent
- may be used for harassment, stalking, assault, threats
- no fee for application.
- lengthy, does not have to be family
- if reconcile, no longer valid. should be vacated in court
- can’t be used to get someone out of the house (if married need Exclusive Possession Order)
Assault or Harassment
- criminal
- call police, they investigate and lay charges
- court hearing
- no drop policy, victim is a witness in court, and if children are present, authorities usually call Child Welfare Authorities
Peace Bond
- criminal
- obtained through the police and then the court sets the terms
- consequences if breached can be severe but does not go on an individual’s criminal record
- lasts 12 months but can be renewed
- can take a while to get
No Contact Order
- criminal
- occurs after between charge and final conviction
- police can act on it
- ends with the resolution of the criminal matter
- can be included in a probation order
Probation Order
- criminal
- occurs after conviction
- can require various terms and conditions
- ends after a set period of time
Self Defence
-Common law defense, codified in the Criminal Code. Defense can use actus reus or mens rea
-Provocation: accused provoked by sudden act/insult
-Self Defense: act in response to act (complete defense)
-Duress: act in response from threats or/act. third party (complete defense)
-Necessity: found self in dire situation and had no choice. (complete defense)
-Honestly believed they had to respond, response was reasonable
S 34 Criminal Code, S 35, S 37
R v. Lavallee
- First time expert witness was allowed
- explain why an abused women might remain in an abusive relationship
- explain nature and extent of violence
- explain accused’s ability to perceive danger from her abuser
- to determine whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm
- Lavallee acquitted because expert testimony but on appeal, crown argued expert opinion shouldn’t have been introduced and court agreed with crown
- SCC, expert testimony admissible to explain victims determination. “Battered wife syndrome” critiqued heavily by feminists and others
History of Racism in Canada
- from overt and blatant to covert and underground
- Discrimination against black loyalists
- colonialism, first nations. ** Indian Act
- irish immigrant discrimination
- Residential schools
- Chinese head tax, chinese ban
- Japanese internment camps after pearl harbor.
R v. Drysdale
- homeless and impaired, asked to leave. grabbed a knife, chased man and punctures tire
- aboriginal man, adopted, FASD, permanent brain damage
- judge very seriously looks at gladue, CC 718.2. special circumstances for sentencing aboriginals.
- focus on restorative justice, limited tim in jail, had to attend resources as directed by judge, change language in probation due to literacy problems
- judicial attitudes and stereotypes play a role.
Ways to Separate if Married
- can get an annulment from the Court of Queen’s Bench. as if the marriage never happened. can order spousal and child support.
- Declaration of Irreconcilability: from Court of Queen’s Bench under the Family Law Act part 4, no grounds required. can’t live together anymore. permanently separated by STILL MARRIED. support (3) and custody (2) may be ordered through Family Law Act. cannot remarry
- Agreement of Separation: divisions, child custody, etc. address everything, legally binding and still married. Under the Family Law Act or interim order under the Divorce Act. But can’t have two difference application in two different levels of court.
Divorce
-Divorce: grounds of divorce used to be a fault system, changed in 1968 now only one ground: marital breakdown.
-Must have lived one year separate and apart intentionally OR
-Adultery of other person OR
-cruelty be it physical or mental. can take the form of excessive drug of alcohol abuse
-Allowed to get back together within 90 days without having to start again.
-Bars: 3 C’s
Collusion: get to together and say I don’t want to wait a year and make something up
Conivance: tried other person in to doing something that gives you grounds for divorce
Condenation: someone has an affair, try to reconcile but can’t, can’t use that act of adultery for grounds
-Divorce is final, there is a 90 day period where you can’t marry anyone else. appeal period.
Divorce Support and Custody
-Divorce Act and Family Law Act Part 3
SPOUSAL
-Recognizes financial dependency, conduct not relevant. Based on condition, needs, kind of marriage, separation agreements. life time spousal support awarded very rarely. less than 20%
-Relieve economic hardship, promote self-sufficiency
CHILD
-portion cost of childcare
-#1 consideration is the best interests of the child Family Law Act s.18. can get more money for special circumstances , payor responsible for 100% until child spends 40% of time with payor.
Common Law (heterosexual)
-Adult Interdependent Relationship Act tells you when you become one.
-Can be through an agreement but usually it is time, no children 3 years co-habiting, children, less time.
-Conjugal relationships where lives shared, emotional dependence, domestic unit.
-Unless your name on the title, you have property no rights.
-Spousal support Family Law Act Part 3, if adult interdependent partner If not, common law
applies
-Child support Family Law Act Part 3
Family Law Act Part 1. can be made to pay even if the person you are co-habiting with is not a legal guardian. can be found to be a stand in for a guardian and made to pay child support.
-Child custody Family Law Act Part 1
and 2
-Not AIP, Family Law Act, court might take pity on you. common law
Doe v. Alberta
- living together, Jane wanted a child but John didn’t so sign an agreement that he would have nothing to do with the child
- Lower court, can’t make such a contract because the court always has jurisdiction in child support because children are a vulnerable group
- Appeal, but court primary in matters of children
- FLA, is John Doe considered to be “standing in the place of a parent”
- Jane and John Doe asserted a S.7 Charter violation, should have parental freedom to make life choices and freedom to contract. Court found FLA did not infringe on right to contract
- relationship of interdependence and same household > with holding consent to being a father does not mean that you can’t be found to be standing in the place of a parent
Custody Under Divorce Act
- sole: one parent full parental responsibility and sill make decision
- split: if more than one child happens
- joint: most common. shared between two parents, joint decision and living arrangements.
- Cannot unilaterally change order of custody. it is a criminal offence if you deprive the other parent of seeing the child.
- can enter in to your own agreements but court must be satisfied
Guardianship
-legal entitlement because of relationship to make decision. only not the case when court declares it different than custody.
DWH v. DJR
Child Custody if same sex
- amended Family Law Act for who is a guardian and who isn’t
- Family Law Act did not address who the guardians were prior to this case. two women, two men, help each other have kids.
- Non-biological dad v.s biological dad
- Custody if same-sex and not adopted- common law
- If other partner adopted, Family Law Act
