Abuse and Family Law Issues
People leaving an abusive relationship face unique challenges when trying to resolve family law issues. Fair negotiations to reach an agreement may not be possible when there has been abuse. Abuse may also impact issues such as spousal support and custody/access. There are some particular family law orders that may help individuals dealing with an abusive situation.
Agreements and Abuse
Negotiating an agreement when there has been abuse can be difficult. A person who has suffered abuse may find it very difficult to be in the same room with the abuser and they may not have equal bargaining power. Abusers 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 negotiation where the parties do not have to be in the same room and other supports for victims of abuse that can make negotiation of an agreement possible. When there has been abuse it is very important that victims not sign anything without getting legal advice from their own lawyer and support they need throughout the process. For more information on how to reach an agreement see Options for Reaching an Agreement.
Spousal Support and Abuse
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. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.
Supreme Court of Canada in Leskun v. Leskun
Custody/Access and Abuse
In deciding custody/access courts consider the best interests of the child. Past conduct of a parent is not considered relevant unless it affects the ability of that person to parent the child. Abusive behaviour, depending on the circumstances, could be considered to affect a person’s ability to be a good parent.
Most people understand the devastating consequences of child abuse. Abuse between parents, even though it is not directed at the children, also impacts the children. People who abuse the other parent may be more likely to abuse their child. Babies are at risk for being dropped or accidently injured during abuse. An abusive parent may use the child to intimidate or control the other parent and may even in some serious cases abduct or harm the child.
Children who witness abuse between their parents are often terrified by it and do not understand what is happening. Even children who do not witness the abuse are affected by living in a home where it is present. Children who live in homes where there is abuse may have behavioural problems and low self-esteem and may be at risk to abuse or be abused in their relationships later in life. Abused parents themselves may suffer from low self-esteem and depression.
Abusive behaviour can influence many aspects of custody decisions including the weight to be given to a child’s wishes when they want to live with the abusive parent and whether custody arrangements that require continuing cooperation between the parents are appropriate.
You can ask the court for a restraining order as part of a family law court case. The court can order the other party to stay away from you and/or any children, if you explain in your evidence why you need this kind of order. A restraining order can be enforced by the police. A restraining order can be a good option if you are already involved in a family law case and you do not need immediate help. If a case has not been started or you need help quickly a Peace Bond or an order under The Victims of Domestic Violence Act may be a better option.
Possession of the Home
Under Saskatchewan law married couples and couples who have lived together as spouses for two years or more have family property rights. They can ask the court for exclusive possession of the family home. This allows one spouse to stay in the home. Courts will consider things like the conduct of the spouses towards each other and what is best for any children in deciding whether to make this order. Exclusive possession orders can be for a set period of time or for an unspecified length of time. The order can be changed if the circumstances change. For more information see Exclusive Possession.
It takes time to go to court and get this kind of order. If you need immediate possession see the information on The Victims of Domestic Violence Act.
Although seeing both parents is generally considered to be in the best interests of a child, where one parent is abusive towards the other parent special considerations may apply. If a parent is concerned about a child’s safety they may wish to request that the other parent’s access to the child be supervised. If parents are not likely to be able to safely facilitate access directly because of violence or hostility issues between themselves, supervised exchanges may be an option. For more information see Access.