People who are considering leaving an abusive relationship have unique challenges not experienced by most people trying to deal with family law issues. When abuse is present, or was present in the past, it’s hard to come to fair negotiations, and it might not be possible at all. Abuse might impact child custody and access as well as spousal support. We will discuss here some options for those dealing with abuse and family law issues, and some court orders that might be useful.
It can be difficult or even impossible to come to an agreement in situations where there has been abuse. A victim of abuse might not be able to cope with being in the same room as the abuser, and might not have equal bargaining power. Abusers will often exert extreme control and power over their victims, and this can impact negotiations.
Where the parties do have to be in the same room for negotiations, there are some options and support for the victims to try to make the process as easy as possible. Negotiation through a lawyer is one option, where the parties discuss what they want with their respective lawyer, and then the lawyers meet and work, through discussion, to resolve the issues.
Victims should never sign anything without having their own lawyer look it over first, and they are entitled to get the support they need throughout the legal process.
2. Custody and Access
The best interests of the child is the number-one priority of the courts. Past conduct of a parent isn’t usually considered unless it affects the person’s ability to parent the child. Abusive behaviour can be considered an issue that would affect a person’s ability to be a good parent.
Abuse between parents also impacts the children. People who abuse their spouse may be more likely to abuse a child, and babies are at risk for being injured or dropped. Children are also sometimes used to control or intimidate or threaten the other parent. In some worst-case scenarios, the other parent even harms or abducts the child.
Abusive behaviour can influence several aspects of the custody decisions, including how much weight is given to the child’s wishes regarding with whom he or she wants to live.
3. Spousal Support
Spousal abuse or misconduct isn’t usually considered when a judge decides whether to order spousal support, or when determining the amount. However, it is relevant if the abuse has affected the spouse’s ability to earn an income.
4. Restraining Orders
This is one of the more popular court orders that may come in handy when there are abuse issues within a separation. You may ask the family lawyer to help you file for a restraining order during any point of the family law court case. The court can order the other person to stay away from you and/or the children, if you can give evidence as to why you need this order. If your case hasn’t yet been started and/or you need help quickly, you can request a Peace Bond.
5. Supervised Access/Exchange
In most cases, seeing both parents is usually considered to be in the child’s best interests, but where one parent is abusive towards the other, special considerations may be applied. If a parent is concerned that the other parent is a threat to the child’s safety, supervised access can be ordered upon request. If parents can’t safely facilitate access because of hostility or violence, supervised exchanges are also an option.
6. Possession of the Home
In Ontario, there are special rules for how the family home is to be treated within the separation and divorce process. The court will decide whether to order exclusive possession of the home, and will include the best interests of any children who are affected, any existing support orders and obligations, any existing property orders, the financial situations of both parties, any written agreements, and any violence committed by one party against the other spouse or children.