Family Violence & Family Law

People leaving an abusive relationship face unique challenges when trying to resolve family law issues. There are some family law processes and orders that may help those dealing with family violence. Family violence can also impact other decisions a couple must make when they separate including decisions about:

• parenting
• spousal support
• family property
• whether to resolve their issues by agreement

When making decisions in family law cases, the court will consider other matters that could indicate that there has been family violence. This could include a:

• civil protection order or proceeding
• child protection order, agreement or measure
• proceeding, order, undertaking or recognizance in a criminal case

A civil protection order is any order that prohibits one party from contacting the victim. It can also include an order removing a party from the family home. The various types of orders that can be made when there is family violence are discussed in Protective Orders.

When a family court case is started, the parties are required to include information about any of these types of orders. The court can also ask the parties themselves about other proceedings.

An application for a parenting order will be heard first if there is also a child protection case underway. Child protection services can ask to be a party to the parenting order application if they are both being heard by a King’s Bench Court. In that case, the court can join the two cases.

If needed to protect the safety of a party to a court order or agreement or a child of a party, the court can order the release of information about a protection order that is in the hands of:

• the government
• a public body
• an individual

Restraining orders may be requested as part of a family law court application. If you are making a court application, you or your lawyer can include a request for a restraining order. A restraining order is a court order that requires the other party to stay away from you and any children. You will need to provide evidence to the court about why this is needed.

Violence between parents, even though it is not directed at the children, impacts the children. People who are violent towards the other parent may be more likely to harm their child. Babies are at risk for being dropped or accidentally injured during violent episodes. A violent parent may use the child to intimidate or control the other parent. In some serious cases, they may even abduct or harm the child. A parent who experiences family violence may suffer mental health issues.

Children who witness violence between their parents are often terrified by it and do not understand what is happening. A child that is directly or indirectly exposed to family violence has experienced family violence. Even children who do not witness the violence are affected by living in a home where it is present. Children who live in homes where there is violence may have behavioural problems and low self-esteem. They may also be at risk to be violent or be victimized by violence in their relationships later in life.

The law recognizes the impacts of family violence. If there is family violence, it must be considered whenever a parenting order is being made. Courts must consider anything that is relevant to the safety, security and well-being of the child. For more information, see Best Interests of the Child.

The court can order that a parent’s time with the child be supervised. This means the child will not be alone with that parent. A third party can supervise parenting time. This can be, for example, a relative or friend of the family. The court will not order a third party to supervise parenting time unless they agree. Parenting time can also be supervised in supervised centres in Saskatoon and Regina.

When the court makes a parenting order, they can include a term that stops anyone from taking the child out of a specified geographic area. The court can also set out in the order that the child can only be removed with a specified person’s consent. This means the child cannot be removed from the location without the required consent or court order. This would apply even if it was just temporary to, for example, visit relatives.

Spousal misconduct itself is not a factor in deciding whether to order spousal support or the amount. However, it will be relevant if it has affected the victim’s ability to, for example, earn an income.

Family violence does not play a part in how family property is divided. However, there are family property orders that can help those dealing with family violence.

The court can grant one party exclusive possession of the family home and household goods. The power to make such an order is discretionary. This means the court will only make such an order when they feel it is appropriate in the circumstances. One factor the court will consider is the conduct of the spouses towards each other and towards the children. For more information, see Family Home.

The court can make an order preventing one spouse from selling, giving away or absconding with property. The court would need to be satisfied that the spouse is risking the family’s financial security or attempting to avoid a division of the property.

Agreements can be the best way to resolve issues following family breakdown. However, negotiating an agreement when there has been family violence can be difficult. A person who has suffered from family violence may find it very difficult to be in the same room with the perpetrator. They may also not have equal bargaining power. Perpetrators of family violence often have considerable power and control over their victims. It can be very hard for fair negotiation to take place. There are, however, options for victims of family violence that can make a fair agreement possible. For example, lawyers can handle the negotiations without the parties being in the same room.