The Canadian Law on “Family Violence” – It’s There to Help You

In the lives of some members of Canadian society, domestic violence is an unfortunate reality.

These days, the more modern term is “Intimate Partner Violence” (IPV) or “Family Violence”, but the concept remains the same: It describes a prevalent form of gender-based violence, usually perpetrated by men against women.

If you’re a victim of Family Violence, the good news is that Canadian Family Law system has some powerful tools to safeguard your legal rights, and help protect you and any children you may have.

Here are some of the basics of what you need to know.

What is “Family Violence”?

Simply put, “Family Violence” is a term used in Canadian Family Law to cover a broad array of mistreatment by one relationship partner against another. The misconduct doesn’t necessarily have to be a criminal offence – rather, the term covers various types of physical, emotional, psychological, and financial abuse, including:

• Physical abuse. This includes not only actual physical assault, but also forced confinement.
• Threats to kill or cause harm. The threats can be against you, your child, or someone else.
• Threats or actual damage to property.
• Threats to kill or harm an animal, or actually doing so.
• Sexual abuse.
• Harassment. This covers verbal harassment as well as stalking. It can also cover cyberviolence (which is violence facilitated by technology).
• Failing to provide the necessaries of life.
• Psychological abuse.
• Financial abuse.
• A pattern of coercive or controlling behaviour.

Family Violence can occur in all kinds of relationships: You can be married to, living common-law with, or even just dating the person who is abusing you. It might be taking place even though your relationship has already ended.

You can also be a victim of Family Violence no matter what your gender or sexual orientation, demographic, age bracket, race, culture, or religious background.

How Can the Family Law Protect Me?

If you are a victim of Family Violence in Ontario – and one who’s ideally on the road toward leaving the abusive relationship entirely – there are several laws in place to help and protect you. These include the federal Divorce Act, and Ontario legislation in the form of the Family Law Act (FLA) and the Children’s Law Reform Act (CLRA).

Depending on your circumstances, these laws give you various rights and court-imposed remedies that can help you move on from the situation. To give just some examples:

• Exclusive Possession of the Home: If you and your abuser live together, the court might grant you “exclusive possession” of your home, which means your abuser must move out.
• Financial Support: The court may also order your abuser to pay you spousal or child support, that can help you with the economic impact of being an abuse victim.
• Protection Orders and Restraining Orders: These are issued by the court; they legally require your abuser to stop communicating and stay away from you.

Of course in the right circumstances there is also the Canadian Criminal Code, which contains numerous provisions making it an offence to commit many forms of Family Violence. These include assault/sexual assault, harassment, and stalking. In Ontario, the police are even governed by a Mandatory Charging Policy, that requires them to lay charges whenever they believe Family Violence is taking place.

Adding to these legal options, there are also many community resources that can help you on a practical level to extricate yourself from your abusive relationship.

Protecting Your Child from Family Violence

Next, if you and your abuser are the parents of a child together, then you should also know about the powerful child-focused remedies available under the Divorce Act (if you are formally married) or the Ontario CLRA (if you are not). Both are particularly geared toward shielding your child from Family Violence and its direct or indirect negative impact.

Child-Focused Definition of Family Violence

For starters, these statutes expressly define Family Violence in the broadest of terms, and recognize the harm that your child can experience, when exposed to it.

The term is defined to mean “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct”. Both statutes go on to itemize an identical list of specific types of misconduct, including the types of physical, sexual, psychological, and financial abuse described above.

What Can a Court Do to Protect My Child?

With that broad definition in mind, the Family Court can make orders that optimize your child’s safety while you distance yourself or formally separate from your abusive partner.

Under either the Divorce Act and the CLRA, the court has the power to make orders around decision-making authority, parenting time, and contact with your child. In doing so, it must give primary consideration to his or her “best interests”. This is defined to include your child’s physical, emotional and psychological safety, security and well-being.

Importantly, the presence of Family Violence must be at the forefront of the court’s assessment in this regard. It must specifically consider how the presence of Family Violence might impact:

• Your abuser’s ability and willingness to care for and meet the needs of your child; and
• Whether it is appropriate to make an order requiring cooperation between you as victim and the abuser, on child-related issues.

Also, the court is obligated take several added factors into account, when making these kinds of child-related orders. These include:

• The nature, seriousness and frequency of the Family Violence and when it occurred;
• Whether there is a pattern of coercive and controlling behaviour in relation to any of your family members;
• Whether the Family Violence is directed toward your child, or whether your child is directly or indirectly exposed to the Family Violence;
• The physical, emotional and psychological harm or risk of harm to your child;
• Any compromise to the safety of your child or other family member;
• Whether the Family Violence causes your child or other family member to fear for their own safety or for that of another person;
• Any steps taken by the person engaging in the Family Violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
• Any other factor the court considers to be relevant.

After taking this huge array of mandatory considerations in mind, only then can the court make an order that best safeguards your child, by fostering his or her best interests, safety, and physical/emotional well-being.

Civil Protection Orders

Finally, both the Divorce Act and the CLRA empower the court to issue a Civil Protection Order whenever it is satisfied that Family Violence is being inflicted. This can protect your safety and that of your child, for example by preventing your abuser from occupying the family home, being in your physical proximity, or even communicating with you, as the circumstances require.

Practical Steps When Facing Family Violence

If you are currently facing Family Violence in your home, there are some important initial steps you can take:

• Keep Records. Document the abuse whenever it happens. Include dates, times, and descriptions of any incidents. This will be helpful as evidence in any future court proceedings.
• Go to a Place of Safety. If you or your child are in danger, contact the police, as well as community support services or emergency shelters, if you need a place to stay.
• Contact a Lawyer. Get informed about your legal rights and options. This can include taking immediate steps towards get a court order covering decision-making and parenting time, and getting financial support for your child from his or her other parent. It might also include obtaining a Civil Protection Order.
• Get Personal and Emotional Support. Living with abuse can take its toll on every aspect of your life. Contact some of the many community service providers aimed specifically to help those in your situation.

If Family Violence is a reality in your life, know that there are many laws in place to protect you. And above all, know that you’re not alone.