Understanding the legal implications of partner abuse
Introduction to Canadian Law
Laws that are most applicable to marriage, common law relationships, divorce and abuse can be found in a variety of statutes, which are federal and provincial. The Constitution Act of Canada gives the federal government and provincial governments the power to make different laws according to the area that the law covers. For example, the federal government is given the power to make laws about currency and coinage, and the provincial government is given the power to make laws about taxes that are used for provincial purposes. Laws made by the federal government apply to the whole country whereas provincial laws apply only in a particular province.
Statutes are written laws that have been approved by the established legislative process. Federal statutes are referred to as Statutes of Canada and they apply to the whole country. Provincial statutes are referred to by province name, such as Statutes of Alberta. All statutes involve use of both the criminal and civil law. Criminal law is the branch of law that states what action is harmful to society and should be punished. Civil law is the branch of the law that deals with relationships and conflicts between particular individuals or companies.
Criminal law
In Canada, some abusive actions are defined as crimes. Criminal offences are stated in the Criminal Code of Canada and apply in any province. The Criminal Code of Canada describes the different offences that someone can be charged with if they are accused of abusive actions.
It is important to remember that whenever a person is charged with a criminal offence he or she is innocent until proven guilty. The lawyers who prosecute offenders have to prove he or she committed an offence beyond a reasonable doubt. In order to prove an offence has been committed, they need evidence. If you have been abused, consider keeping a record of the times when you are abused or when you get medical treatment. This record may be useful as evidence.
In order to take legal action against an offender, it will be necessary for the police to formally charge the offender. If the accused person does not plead guilty there would have to be a trial at which the person who has been abused would likely have to give evidence. If the offender is convicted or released on bail, the courts can impose some restrictions on the offender with regard to contact with the person they were abusing. It is also possible to request some restitution of goods or money as part of the sentencing process.
Civil law
Civil law is the branch of the law that deals with relationships and conflicts between particular individuals or companies. Civil law deals with divorce, custody and access to children. It is also possible to apply for a restraining order or emergency protection order in the civil courts which requires a named person to stay away from you. There are both provincial and federal statutes that deal with divorce and separation issues. It can be quite complex, so that you might need the assistance of a lawyer or a social agency.
The civil law also allows for legal action against another to recover compensation for damage or injury suffered. A civil action for compensation will only succeed if some damage can be proved to have occurred. In order to pursue a civil action for a physical injury, it is generally necessary to show that the injury occurred because of a civil tort. Torts are categories of legal action that have been established by the courts over many years and include assault, battery, trespass, and negligence. Civil action for damages can be taken in Provincial Court, which has an upper limit in Alberta of claims worth $25,000, or in the Court of Queen's Bench. The process in Provincial Court is fairly informal, so that it is possible to go ahead without legal representation. Procedure in the Court of Queen's Bench is more detailed and may require the assistance of a lawyer.
| Legal Implications - Continued: |
July 2003
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