Understanding the legal implications of partner abuse
Financial Abuse
Criminal offences involving financial matters, such as theft, fraud or forgery could be difficult to prove in a domestic situation. However, there can be circumstances where what is occurring meets the legal criteria for specific offences. For example, stealing from a personal chequing account by forging a signature. You can always seek advice from the police or a lawyer to see if the economic abuse you are suffering is punishable by law.
The criminal offences listed below cover most financial or material abusive action.
- Theft
- Theft by a person holding a Power of Attorney
- Theft of money held under direction
- Stealing and using credit card
- Forgery
- Uttering a forged document
- Drawing document without authority
- Obtaining anything by an instrument based upon a forged document
- Robbery
- Extortion
When a person fraudulently takes or uses property of another with the intent to:
- deprive the other person of the property temporarily or permanently, or
- pledge the property or deposit it as security, or
- part with it under a condition as to its return so that the true owner may not be able to fulfill the condition, or
- use it in such a way that it cannot be returned to the condition it was in when it was taken or used.
Even if an item is taken without secrecy, it may still be classified as fraudulent.
The offence is counted as being committed when someone has the intent to steal an item and then moves it or causes it to be moved.
Theft of a bank credit is included within the definition of theft.
Theft by a person holding a Power of Attorney
A Power of Attorney is a legal document whereby one person gives to another the power to run specified aspects of their financial affairs. It might arise, for example, where one partner in a relationship has a mental or physical disability.
- A person commits theft where they have been granted a Power of Attorney to sell, mortgage, pledge or otherwise dispose of property and they carry out this duty fraudulently.
For fraudulent conduct to be present, there must be an intention to deceive, and actual or possible loss.
- The offence also includes the conduct of fraudulently using the proceeds of any sale, mortgage, pledge or other disposition for a purpose other than a purpose granted by the Power of Attorney.
Theft of money held under direction
- Where a person receives money, valuable security, or a Power of Attorney for the sale of property with a direction that the money, proceeds or property be used in a specific way; and the person fraudulently applies the proceeds, money or property in a way contrary to the direction.
- The offence is not committed where the person receiving the money, proceeds or property is a creditor of the person disposing of the items, unless the direction is in writing.
- Evidence of a direction has to be more than just an expectation that something would happen. Express instructions given to an accused will constitute a direction.
Stealing and using credit card
- Creates the offence of stealing or forging a credit card.
- Also includes using a credit card that the user knows was obtained by an offence being committed in Canada or by an act that would be an offence in Canada.
- Using a credit card that the user knows has been revoked or cancelled.
- Where a person makes a false document, knowing that it is false, intending that it should be treated and acted upon as genuine to someone else's prejudice, or that the document will induce someone to do or not to do something.
- Making a false document includes altering, adding to, erasing, or removing anything material in a document.
- The offence is completed as soon as the document is made and the maker intends to use it, whether or not the forger intends a specific person to act on the document.
- The offence is also completed even if the document is incomplete or has no legal effect, as long as it can be shown that the document was intended to be treated as genuine.
- The offence of forgery includes the situation where the signature of a payee is endorsed on a cheque by someone other than the payee. It is no defence that the payor has approved a person other than the payee to endorse the cheque. So if a cheque is made out to you and someone other than you signs your name on the cheque to cash it, the other person has created a false document and has committed forgery.
- A document which wholly or partly purports to be made by a person who either did not authorize the document, or who does not exist.
- A document made by a person but which is false in a material way.
- A document made by a person, or under his authority, with a fraudulent intention that it should represent that it was made by another person, either real or fictitious.
- The offence of using, dealing with, or acting upon a forged document whilst knowing that it is forged.
- The offence of making or trying to make someone else use, deal with, or act upon a document whilst knowing that it is forged.
Drawing document without authority
This is similar to the offences of forgery and uttering a forged document. It would also cover the situation of endorsing a cheque made out to someone else.
- Where a person intends to defraud and without lawful authority makes, executes, draws, signs, accepts or endorses a document in the name or on the account of another.
- Where a person uses a document knowing that it has been made, executed, signed, accepted or endorsed with intent to defraud and without lawful authority.
Obtaining anything by an instrument based upon a forged document
- Where a person demands, receives or obtains anything, or causes anything to be delivered or paid on the basis of an instrument issued legally but knowing that it was based upon a forged document.
- Stealing in circumstances where violence or threats are used to accomplish the theft.
- Stealing from a person where that person is wounded, beaten, struck or is the victim of any other personal violence.
- Assaulting any person with intent to steal from him or her.
- Stealing from a person while armed with an offensive weapon or an imitation of one.
- Where a person induces or tries to induce another to do something or cause something to be done by using threats, accusations, menaces or violence without any reasonable justification or excuse.
- The offence can also be committed by threatening, menacing or using violence against a third person in order to induce another person to do something or cause something to be done.
| Legal Implications - Continued: |
July 2003
©1998-1999 Legal Resource Centre of Alberta.
