Disclaimer: This article aims to provide educational information surrounding domestic violence and divorce. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.

In our previous article, we outlined how family violence is defined. In this article, we are going to talk about how family violence impacts your separation and divorce. 

How is family violence defined under the Divorce Act and Children’s Law Reform Act?

As discussed in our previous article, family violence is defined in The Children’s Law Reform Act and The Divorce Act.

To meet the definition of family violence, it must be conducted by a family matter that is violent or threatening or a pattern of coercive and controlling behaviour. In the case of children, that includes direct or indirect exposure to abusive behaviour. It must also cause the other family member to fear for their safety or that of another person. 

As we noted, this includes a wide range of behaviour beyond physical abuse, including psychological and financial abuse. 

Protective orders under the Family Law Act and the Children’s Law Reform Act 

The authority to issue a restraining order (or protection order) comes from section 35 of the Children’s Law Reform Act and section 46 of the Family Law Act. To obtain a restraining order, the person seeking it must have reasonable grounds to fear for their safety or the safety of a child in their custody.

It’s not necessary for the respondent to have committed any actual act, gesture, or words of harassment; the applicant’s legitimate fear of such actions is sufficient. While these fears can be personal or subjective, they must be connected to the respondent’s behavior for the court to consider them. These fears can concern both psychological and physical safety.

Exclusive possession of the matrimonial home 

For married spouses, you can apply to family court under s. 24(1) of the Family Law Act for exclusive possession of the matrimonial home. We discussed this in an earlier article, but it simply prohibits your spouse from accessing the matrimonial home. 

These orders are typically temporary while you are separating or divorcing and resolving the division of your property.

When determining matters related to family violence and exclusive possession of the family home, courts consider several factors to ensure the best interests and safety of those involved. These factors include the best interests of the children affected, any violence committed against the spouse or the children, existing orders or written agreements, and the financial positions of both spouses. 

An order for exclusive possession is enforceable in the same manner as a restraining order. If your spouse comes into the home, there can be significant penalties. A first offense may include a fine of up to $5,000, imprisonment for up to three months, or both. For a second or subsequent offense, the penalties increase to a fine of up to $10,000, imprisonment for up to two years, or both.

Child protection and parenting arrangements 

Family violence significantly impacts child protection and parenting time arrangements by influencing how courts determine the best interests of the child. As with any matter involving children, the primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being.

Courts consider various factors related to the circumstances of the child, including family violence. When considering family violence, courts specifically look at:

• The nature, seriousness, and frequency of the family violence, and when it occurred.
• Whether there is a pattern of coercive and controlling behavior.
• Whether the violence is directed toward the child or if the child is directly or indirectly exposed to it, including whether the violence causes the child or other family members to fear for their safety 
• The physical, emotional, and psychological harm or risk of harm to the child.
• Any compromise to the safety of the child or other family members.
• Any steps taken by the abuser to prevent further violence and improve their ability to care for the child.

Courts may issue specific orders to ensure the child’s safety, such as supervised parenting time, prohibiting certain behaviors, and setting conditions for communication. It is crucial for individuals to inform their lawyer about any abuse or violence to ensure appropriate measures are taken to protect the child and the non-abusive parent.

Choosing a dispute resolution process

The courts encourage families to seek alternative dispute resolution processes, such as mediation and collaborative law, whenever possible. 

Alternative dispute resolution (ADR) processes, such as mediation or collaborative law, are generally not considered appropriate when there is a history of family violence. Family violence can create a power imbalance between the parties, making voluntary processes potentially coercive and posing a risk to the safety and security of the victim.

In such cases, court proceedings may be necessary to ensure fair and secure outcomes, as the structured legal framework can provide better protection and support for those affected by family violence. 

Plat Simionati LLP: Family law is what we do, and we do it well.

Family lawyers play a crucial role in navigating the complexities of family violence cases, particularly in sensitive matters like obtaining restraining orders or determining parenting arrangements. 

At Plat Simionati LLP, our experienced family lawyers are dedicated to guiding you through these challenging times with compassion and professionalism, ensuring that your rights and those of your loved ones are protected. Whether you need assistance with restraining orders, custody issues, or any other family law matter, Plat Simoinati LLP is here to support you every step of the way.