Separation: The Threat of Violence
Living in an abusive relationship and household is incredibly difficult, particularly in cases where one is facing financial hardships and is unaware of the legal system’s approach to domestic violence. Domestic violence, family violence, and intimate partner violence are very serious matters, and generally consist of physical, emotional, sexual, psychological or even financial force or abuse inflicted by a partner or ex-partner. It can also include threats to harm children, other family members, pets and property.
Psychological and emotional abuse, verbal abuse and economic/financial abuse are not always necessarily considered criminal offences but are nonetheless very serious and there are laws that exist to protect you and your children against violence.
If you are experiencing domestic violence, you are not alone in facing this – there is help available for you. If you have been physically or sexually assaulted, you can call the police, who will obtain your permission to work with you and Victim Crisis Assistance teams to provide you with short-term assistance.
Where you may wish to avoid contacting the police, you have community resources available to help you, including community health centres; your family doctor; a Sexual Assault/Domestic Violence Care Centre; or even calling the Assaulted Women’s Helpline for more information and referrals. In addition, if you are concerned about safety, you may wish to apply for a restraining order or an order for exclusive possession.
A restraining order is a court order that states what your partner cannot do, such as where they cannot go or who they cannot contact – breaking any such condition is a criminal offence. If you require a restraining order as soon as possible, go to your nearest family court and ask for help from duty counsel or the advice counsel lawyer.
You can only apply for a restraining order against a partner either if you were married to your partner; you live together with them for any period of time; or you share a child with your partner.
The application requires some written documents, including an application and a Canadian Policy Information Centre Restraining Order Information Form, which would check off all the applicable conditions to your case. You will need to keep this restraining order with you at all times, as the police will need to see it to enforce it.
Exclusive Possession Orders
An order for exclusive possession would state that one partner can stay in the home, while the other is not allowed on the property. This type of order is usually temporary, and any children of the relationship would also be allowed on the property. This type of order usually applies to legally married partners; in cases of common-law couples, it is harder for one party to get an order for exclusive possession, as it depends on whose name is on the deed/lease. In such cases, it is advised that you seek legal advice.
Family Law Rights – Child Custody
Regardless of whether or not you are married, you and your children have rights under Ontario family laws. In determining child custody (also known as “decision-making regarding children”) in abusive or controlling situations, you should not agree to joint custody, as this arrangement requires cooperation and positive communication. Your partner may use this arrangement to assert some control over you. Note that custody does not necessarily determine who your child lives with (also known as “residence”) or how much time is spent with each parent (“access” or “parenting time”).
You should speak to a family lawyer as soon as possible about custody. Many courthouses can help you with custody issues immediately if you are able to show that a delay may harm you or your children. If your child is living with your partner when you go to court, you have the right to ask the court to order the police to bring the children to your home.
When deciding custody, the judge will generally look at the best interests of the children, which includes looking at who is the primary caregiver; who the children are more attached to; who can offer the most stability to the children, and how each parent will work to help children maintain a relationship with the other parent. Ultimately, the courts wish for the children to maintain healthy relationships with both parents.
Family Law Rights – Access and Supervised Access
Generally speaking, parents who do not have custody are still permitted to visit and spend time with their children, provided that they have not been abusive nor neglectful towards the children in the past – this is called access.
Parents with custody of children cannot deny the other parent access unless there is a court order that orders so. You can only stop the other parent from accessing the children if it would be unsafe, such as they have been drinking or using drugs.
If you are worried for your children’s safety, you can ask the court to order supervised access. This is a type of access where the parent of the child is able to visit their child, but visits are supervised by a third party to ensure the child is safe. Often times, the third party may be a friend or family member both parents trust to supervise the visits.
In cases where you may be worried for your own safety while picking up or dropping off your children to access visits, you can obtain an order for supervised access exchanges, where someone watches a parent pick up or drop off the child, but does not watch the actual access visit. This is often executed in public places where there is less risk of altercation.
Domestic and family violence is confusing and terrifying, and it can be very difficult to know how to proceed with legal action once you and your family have reached safety. If you wish to talk to a lawyer about what you can do to protect yourself and your children, we are here to assist you. Please do not hesitate to contact us and our specialist Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.