Family Violence & Family Law
People leaving an abusive or violent relationship face unique challenges when trying to resolve family law issues. There are some family law processes and orders that may help individuals 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 and whether to resolve their issues by agreement.
Coordination of Court Proceedings
When making decisions in family law cases the courts consider if there have been orders, proceedings or agreements involving the parties and/or their children that could indicate that there has been family violence. The court will consider if there has been 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 being around the other party, contacting them, communicating with them or harassing or threatening them. It also includes an order removing a party from the family home or prohibiting a party from engaging in family violence. 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.
If there is a child protection case as well as an application for a parenting order, the application for a parenting order will be heard first. 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.
Access to Information
The court can order the release of information about a protection order that is in the hands of the government, a public body or an individual if this is needed to protect the safety of a party to a court order or agreement or a child of a party.
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/or any children. You will need to provide evidence to the court about why this is needed.
Best Interest of the Child and Family Violence
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 and may even in some serious cases abduct or harm the child. A parent who experiences family violence may suffer from low self-esteem and depression.
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 and may 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 any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. See Best Interests of the Child for detailed information about the factors the court will consider when deciding on the best interests of a child and the specific factors that must be considered when there is family violence.
Supervised Parenting Time
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. Parenting time can be supervised by a third party, 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 parenting time centres provided through the Supervised Parenting Time/Exchange Program. This program only operates in Saskatoon and Regina.
Orders Prohibiting Removal of Child
When the court is a making a parenting order they can include a term that prohibits the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal. This means the child cannot be removed from the location even temporarily, for example to travel out of the area to visit relatives, without the required consent or court order.
Spousal Support & Family Violence
Although spousal misconduct itself is not a factor to be considered when deciding whether to order spousal support or the amount, it will be relevant if it has affected the abused spouse’s ability to, for example, earn an income.
There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. … If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.
Family Property & Family Law
Although family violence may not impact the division of family property there are family property orders that can assist people dealing with family violence.
Exclusive Possession of the Family Home
The court can grant one party exclusive possession of the family home and household goods. The power to make such an order is discretionary, meaning 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.
Protecting Family Property
The court can make an order preventing one spouse from selling, giving away or absconding with property if they are satisfied that the spouse is wasting family property and jeopardizing the family’s financial security or attempting to avoid a division of it under family property laws.
Agreements & Family Violence
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 and they may 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 also, however, options for negotiation where the parties do not have to be in the same room and other supports for victims of family violence that can make negotiation of an agreement possible.