Our project on economic abuse and family litigation is well underway. Currently, our research is delving into case law to uncover how family business can be used as tools of economic abuse. The analysis reveals fascinating and important patterns in the behavior of perpetrators and the legal responses to them.

An example, Droit de la famille 22274, 2022 QCCS 638

Economic abuse often is just one form of violent behavior present in a relationship. Perpetrators use whatever means available to exert control and cause harm. In this case, the perpetrator wielded control over their immigration sponsorship and financial disclosures to pressure the victim/survivor.

By threatening to revoke their sponsorship, the perpetrator manipulated the victim into reacting. The perpetrator called the police and made a claim that the victim threatened to kill him, herself and their children.¹ This led to the child being removed, causing significant distress for the victim/survivor.  

Cases may define violence as ‘mutual’ or on the part of the victim/survivor when incidents like this occur. However, research shows us that perpetrators know how to ‘trigger’ reactions from the victim/survivor to ‘create’ false evidence of the victim’s instability and violence. This tactic is used against the victim² and was evident in the current case.

The perpetrator used non-payment and non-disclosure as primary tools of economic abuse.³ They claimed that they had no ownership in their family’s business, despite direct evidence to the contrary.⁴ Furthermore, they claimed that they weren’t able to work full-time due to medical reasons.⁵ These behaviors are incredibly common in the case law, making non-disclosure and non-payment the ‘bread and butter’ of economic abuse.

This case stood out because the perpetrator used immigration status to instigate criminal charges against the victim. Fortunately, the Court recognized the true nature of this situation and the perpetrator’s role and intentions.⁶

Lesson from the Case

This case illustrated three common features in the case law on economic abuse involving a family business:

• Perpetrators will use whatever points of power they have to cause harm. In this case, those points were on immigration and financials.
• Economic abuse is usually one piece in a wider pattern of violence.
• Violent behavior is complicated, nuanced, and relational. In this case, the victim faced criminal charges and could easily been perceived as the violent party or viewed as part of a mutually violent situation. However, the Court correctly identified and attributed the responsibility to the perpetrator.

This analysis highlights how crucial it is to recognize the subtle methods of economic abuse and the importance of thorough legal examination to ensure victim/survivors receive justice.

[1] Droit de la famille 22274, 2022 QCCS 638 at para 15.

[2] Dr Linda C Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2017 CanLIIDocs 2) at 20.8.

[3] Supra, note 1 at para 76.

[4] Ibid, at para 72-73.

[5] Ibid, at para 80.

[6] Ibid, at para 39-40.

The post Stories in Economic Abuse: Tools of Harm first appeared on British Columbia Law Institute.

The BCLI’s Reconciliation Primers highlight how legal pluralism underpins meaningful implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It can support the application and prioritization of separate and shared legal authorities. As noted in Legal Pluralism: Indigenous Legal Orders & Canadian State Law, the Act respecting First Nations, Inuit and Métis children, youth and families (the Act) presents a helpful example for how legislation can create a framework for coordinating the application of different Indigenous legal orders and state laws.

In assessing the constitutionality of the Act, the Supreme Court of Canada applied a legal pluralist analysis.[1] The Court’s analysis draws out some of the layers of legal pluralism within the Act. It is helpful to understanding the relationships between different legal norms within the legislation and Parliament’s vision for building and maintaining respectful relationships between distinct legal orders.

The Court articulated some of the ways in which the legislation brings together three different legal norms: Indigenous laws, Canadian Crown laws, and international legal standards. These norms are reflected in the process leading up to development of the Act, the text of the Act, its purpose, and the space it creates for developing legislation and government-to-government arrangements moving forward.

As the Court noted, these distinct legal norms are not stand alone elements within the legislation. They are interwoven and mutually reinforcing. For example, the purpose of the Act has three interwoven elements which support the overarching purpose of protecting the well-being of Indigenous children, youth and families. The interwoven elements of the purpose are an affirmation of inherent Indigenous jurisdiction in relation to child and family services, legislative provisions enacted by Parliament to establish national standards, and international standards as articulated in UNDRIP. The Court helpfully provides examples of how these distinct elements are mutually reinforcing:

Affirming the legislative authority of Indigenous groups, communities and peoples and adopting national standards were viewed as an integral part of implementing aspects of the UNDRIP. Similarly, the affirmation of Indigenous legislative authority was also seen to sit comfortably alongside the national standards articulated by Parliament, because Indigenous communities had been participants in formulating the standards and were expected to be participants in implementing them thereafter.[2]

As the BCLI has noted in the Reconciliation Primers, there are various ways state law can facilitate respectful relationships between distinct legal norms in a manner consistent with UNDRIP. Further, the effect of creating space for the exercise of jurisdiction by Indigenous Peoples and communities, is to invite further weaving together of Indigenous, national and international law to protect the well-being of Indigenous children, youth and families.[3]

In affirming Parliament’s openness to a legally plural framework for reconciliation, the Act and the Court’s decision help shed some insight on a path forward in the area of child and family well-being. The shift this legislation represents towards respect for Indigenous legal orders on par with federal state law is a welcome shift in the Canadian legal framework.

[1] See Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

[2] Supra note 1 at para. 53.

[3] Supra note 1 at para. 134.

The post Legal Pluralism and the SCC’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families first appeared on British Columbia Law Institute.

Meeting these legal obligations will require collaboration between Indigenous and Crown governments as well as the building and maintaining of respectful relationships between different and distinct systems of law. Legal pluralism offers a useful framework to demonstrate ways in which people manage differing systems of law and jurisdiction.

The BCLI has released three new primers on legal pluralism to support legal practitioners and those in the legal/policy community working with Crown law institutions in understanding some of the ways in which multiple systems of law can operate together.

Primer 3, Legal Pluralism in Canada looks at the way in which the Canadian state has always recognized coexisting sources of law, for example provincial and federal sources of law. Understanding the arrangements that Crown laws already use can support their application to other legal relationships.

Primer 4, Legal Pluralism: Indigenous Legal Orders & Other State Jurisdictions explores ways in which other state jurisdictions have built frameworks for the operation of state and Indigenous laws through state constitutions, state legislation and state court procedures.

Primer 5, Legal Pluralism: Indigenous Legal Orders & Canadian State Law is a collaborative publication with the Indigenous Law Research Unit at the University of Victoria. It explores the interactions of different systems of law and jurisdiction in what is now known as Canada from two perspectives: 1) as between Indigenous legal orders and 2) as between the Canadian state and Indigenous legal orders.

With the adoption of the Declaration Act and recent amendments to the BC Interpretation Act, legal practitioners must turn their minds to what it means to construe every act and regulation in a manner consistent with the UN Declaration. Lawyers will also be increasingly called upon to engage with non-state laws. These primers, together with our earlier primers on The UN Declaration on the Rights of Indigenous Peoples and BC’s Declaration on the Rights of Indigenous Peoples Act and Indigenous Laws are intended as guides to support increased understanding of what these changes mean in practice.

The post Latest Reconciliation Primers Explore Legal Pluralism first appeared on British Columbia Law Institute.

The BCLI launched the RCLF Program in 2022 to support the implementation of the Declaration Act in BC. The BCLI will supply research and innovations to align the Crown legal system with Indigenous legal frameworks.

The first reconciliation primer, The UN Declaration on the Rights of Indigenous Peoples and BC’s Declaration on the Rights of Indigenous Peoples Act, introduces the Declaration Act and its implications for BC legislation. It discusses how the BC Declaration Act, which was passed in 2019, affirms that the UN Declaration on the Rights of Indigenous Peoples (“UN Declaration”) applies to the laws of BC. It also discusses the legal obligations the Declaration Act sets out for the BC government, including:

• To take all measures necessary to ensure the laws of BC are consistent with the UN Declaration (section 3);
• To prepare and implement an action plan to meet the objectives of the UN Declaration (section 4); and
• To report annually to the Legislative Assembly on Progress (section 5)

In accordance with section 4 of the Declaration Act, in 2022, BC released the Declaration Act Action Plan 2022-2027 (“Action Plan”). It sets out the provincial government’s goals and outcomes for the implementation of the UN Declaration in BC over the 5-year period to which it applies.

The second primer, Indigenous Laws, is a collaborative publication with the Indigenous Law Research Unit at the University of Victoria. It provides an overview of Indigenous laws, their sources and how they operate. Indigenous laws describe the principles and processes that Indigenous Peoples and communities use and have always used to govern themselves. Aboriginal law, by contrast, describes Canadian laws about Indigenous issues.

The BCLI will continue to release more primers as we explore law reform issues related to the implementation of the Declaration Act.

The post BCLI Releases Reconciliation Primers first appeared on British Columbia Law Institute.