Area of Law: Criminal Law
Answer # 1857
Family law issues and domestic assaultRegion: Ontario Answer # 1857
The laws concerning how domestic assault impacts family law issues are found in provincial legislation, such as the Family Law Act, Family Services Act, and the Child, Youth and Family Services Act, as well as previous decisions made by the family law courts. The laws vary slightly depending on the province(s) where the spouses and their children live.
There are a number of ways that domestic violence impacts family law issues, including:
1. Disputes about who will live in the family home
Where neither spouse wants to leave the house, either spouse can make an application to live in the house alone, called exclusive possession. Domestic violence is an important factor that courts consider when determining if one of the spouses will be awarded exclusive possession of the family home. This option only applies to married couples. Either spouse can make an application for exclusive possession even if he or she is not the one who owns the home (not listed on title), or the person named on the lease. These orders do not decide who owns the property, or who has rights under a lease. Also, being excluded from the matrimonial home does not affect a spouse’s ownership rights.
In child custody disputes, the court always considers the best interests of the child. One consideration in deciding what the best interests of the child are can be one parent’s past violence against a spouse or a child. A judge may award sole custody to the parent who was a victim of abuse where it finds that the abuse did take place and where the parents cannot communicate or cooperate with each other. If a parent is awarded sole custody, this means that they get final decision-making power for that child, which can include decisions such as where they will live and go to school, and issues concerning their health and well-being.
However, domestic violence does not always mean that a judge will award sole custody to the spouse who was the victim. A court is more likely to consider domestic assault to be important where it happened frequently during the time the spouses were together and where the children may have seen the violence happening.
Even where there has been domestic assault, courts generally do not sever the child-parent relationship entirely. Instead, the abuser’s access to the children will have conditions, such as:
- visits with the child must be supervised, and/or
- the abuser parent must attend counselling or parenting courses in order to continue seeing the child.
Courts are more likely to prevent the abuser parent from spending time with a child if:
- the abuse towards their spouse was frequent and in the presence of their child,
- the abuser was neglectful or violent towards the child,
- the abuser cannot control their anger or violence, and
- where an older child clearly communicates that they do not want to see that parent again.
3. Child protection
All provinces and territories have passed laws giving government agencies certain powers to help protect children. For example, provincial laws can allow government agencies to remove children from an abusive home. In these instances, the child may be placed with the non-violent parent, extended family, or with the Children’s Aid Society.
Spouses are not compensated for being a victim of domestic violence through spousal support claims. There are other ways that a court may take domestic assault into account for spousal support purposes, however. One example is when the domestic assault has made it very hard for the victim spouse to become self-sufficient, such as when an abuser prevents a victim from having access to money (ex. pressuring them to quit their job) or controlling how a victim uses their money.
All provinces and territories have laws, under their family law legislation and family violence legislation, to help protect spouses and children from abuse by the other spouse. The most common types of provincial orders are emergency protection orders (there can be several types), protection orders, and restraining orders. These orders are available to any spouse whether legally married or living common-law.
A spouse who has been a victim of domestic assault can ask the court for a temporary or final protection or restraining order against the abuser spouse. The spouse who is asking for the restraining order must be able to show evidence that they have reasonable grounds to fear for their safety or the safety of their child.
The penalties for assault vary widely. If you have been charged with assault, or any crime, contact our preferred criminal defence experts:
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