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I've left my abusive partner. How does an abusive relationship affect my family law issues?

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I've left my abusive partner. How does an abusive relationship affect my family law issues?

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Reviewed: 
May, 2016
Answer

Partner abuse can affect your family law issues in many important ways:

  • It can make it difficult to talk with your partner safely and fairly when trying to resolve family law issues like child custody and access or spousal support.
  • It can affect the process you choose to use to resolve your issues. For example, whether you choose to try an out of court option with a family law professional, or to go to court.
  • It can affect how your issues are resolved. You and your partner can agree on what happens, or a family court judge or family arbitrator can decide what happens.For example, your partner's access to your children may be limited if they physically abused your children. Or, a history of financial abuse may affect how the children's expenses are paid.
  • It can affect the type of evidence you have to give to explain your safety concerns.

Other issues

If you or your partner are not Canadian citizens, it may complicate your situation. See the question on Will I be forced to leave Canada if I leave my partner? You can talk to an immigration lawyer about how your legal status in Canada may be affected by leaving an abusive relationship.

Partner abuse cases can also be complicated if your partner is charged with a crime related to their abuse. See the question on What if I have family court and criminal court issues happening at the same time?

Talk to a lawyer

If you can't afford to hire a lawyer for everything, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with only certain things, like getting a restraining order or drafting a court document.

If you can't afford to hire a lawyer at all, you might be able to find legal help in other places. You can also find emotional, safety planning, and housing help when leaving an abusive relationship.

If you have experienced family violence and need immediate legal help, you might be able to get 2 hours of free advice from a lawyer. This service is offered through some women's shelters, community legal clinics, and Family Law Service Centres. Or you can call Legal Aid Ontario toll-free at 1-800-668-8258 to find out more.

If you have experienced sexual abuse and live in Toronto, Ottawa, or Thunder Bay, you might be able to get 4 hours of free advice from a lawyer. You have to complete a voucher request form. Or you can call the Independent Legal Advice for Sexual Assault Survivors Pilot Program at 1-855-226-3904 to find out more.

Next steps

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There are many ways or processes you can use to resolve your issues with your partner. For example, you can:

The law says the process you use to resolve your issues must be fair. But a history of partner abuse may make it difficult for some processes to be safe or fair.

For example, you cannot be forced, threatened, or unfairly pressured to sign any agreement. If your partner controlled the finances, you may feel like you have to agree to what they want before they give you any money. This may mean that the process is not fair.

If you're in this situation, it’s a good idea to talk to a lawyer. Your lawyer can talk to your partner for you and help you protect your rights.

Negotiating on your own

Think about whether you can negotiate things safely and fairly if you've been abused. For example, if you are meeting in person, see if you can find a place that is safe and that you can leave if you don't want to talk to your partner any more. Take notes so that you can remember what you talked about.

Or, you may decide you can discuss things with your partner only by email or phone, or with someone else there. Or with the help of someone you and your partner respect and trust. This could be a family member, a friend, a colleague, or a religious advisor.

Resolving your issues out of court

Think about whether a family law professional can help you and your partner resolve your issues safely and fairly. These are people who are trained to work with both of you to help you reach an agreement or make a decision for you, without taking sides.

They use processes like mediation, arbitration, or collaborative family law. These processes are sometimes called alternative dispute resolution (ADR) alternative dispute resolution because they help solve your issues without going to court.

Alternative dispute resolution (ADR) refers to different ways or processes that try to get people to agree on their legal issues without going to court. Some of these processes are collaborative family law, mediation, and arbitration.

In many ADR processes, including mediation, mediation-arbitration, and arbitration, you and your partner have to be screened first to see if the family law professional can help you resolve your issues safely and fairly.

Screening means that someone meets with each of you separately to find out if there are things like:

  • a history of partner abuse
  • a mental illness, such as depression

Screening is not meant to judge you or provide treatment. It is done to see if the process you have chosen can be fair and safe.

Sometimes, even in cases of partner abuse, the family law professional can do things to make the process work for your situation.

For example, if you aren't comfortable being in the same room as your partner, the mediator can talk to each of you in separate rooms. They go back and forth to talk to each of you. They can also plan for both of you to come and go at different times.

In other cases, after screening you and your partner, the family law professional might decide that they do not think the process can be done in a way that is fair or safe. If this happens, court might be the only way to resolve your issues.

Family court

A family court makes decisions using the family law rules and laws. Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

If you go to family court, you may find it helpful to work with a Family Court Support Worker. They are specially trained professionals who are not lawyers. Their job is to provide family court support to victims of domestic violence.

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If your partner has abused you or your children, think about the best way to keep all of you safe. This usually includes a court order if you have serious safety concerns.

Keep your partner away

You can take steps to keep your partner away from you and your children. These steps can include asking the family court for a restraining order.

Your home

If you want to stay in your home, you can ask the court for an order for exclusive possession of the matrimonial home. This means you and your children can stay in, or return to, your home and your partner isn't allowed on the property. It also allows you to change the locks so that your partner cannot get into the home.

This order doesn't affect who owns the home. It only affects who can live in the home. It usually only lasts for a certain period of time, while you and your partner or the court decide how to resolve all of your other issues.

You can get an order for exclusive possession only if you were married. If you were in a common-law relationship, who can stay in the home usually depends on who owns it.

You and your partner might also agree that you have exclusive possession to the home. You can make a separation agreement that includes who can live in the home.

Custody and access

If you have children, you might want to ask for:

  • sole custody, if you do not feel safe talking to your partner, or feel like they would scare or frighten you into doing what they want
  • supervised access for your partner, if you think your partner might try to hurt the children physically or emotionally, or if you think your partner will take the children and not bring them back
  • supervised access exchanges, if you think your partner might try to hurt you physically or emotionally when you or your partner picks up or drops off the children for access
  • a non-removal order that your partner cannot leave the province or country with your children, if you think they will take the children and not bring them back
  • an order for police enforcement, so the police can help you make your partner follow the custody and access order

A family court may consider your partner’s abusive behavior if it affects their ability to be a good parent to your child. This includes whether a parent has been violent or abusive to the child, their partner, a parent of the child, or anyone else living in the home. This does not include anything done in self-defence or to protect another person.

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All partners who separate can ask for things like monthly child support, special or extraordinary expenses, and spousal support.

If your partner controlled the family finances or refused to share money with you, they might continue this kind of financial abuse after the relationship is over.

For example, they may refuse to pay support, take all the money out of joint accounts, or refuse to tell you where they have put the money. If your partner does things like this, you may need to go to court to get a court order to help protect your right to property and support. The court can order that your partner share money with you and tell you about all of their property.

Another type of order that a court can make is a "non-depletion order" that limits how your partner's can deal with their property. For example, it can say that your partner is not allowed to sell, gift, or otherwise deal with certain property. You can ask for a non-depletion order if you think that your partner may get rid of their property so that they don't have to share it with you.

Expenses related to your case

You may also ask the court to order your partner to pay your costs to resolve your issues. This can be an important order in cases of financial abuse.

Normally, each person has to pay for their own lawyer and any court or arbitration costs. The court or arbitrator can later decide about cost consequences and make an order about who has to pay for costs.

But, in certain cases, the court or arbitrator can order your partner to pay you money while you are still trying to resolve your issues. This money is used to cover some or all of the future expenses of your court case, including your lawyer’s fees.

This type of court order or family arbitration award is sometimes called "interim disbursements" or "interim costs".

Interim costs can be important if your partner controls all or most of the family money.

To ask the court or arbitrator for this, you usually have to show:

  • that your expense is reasonable, and
  • that you need the money so that you can present your case fairly

The court or arbitrator may look at other things when deciding whether to give you interim costs. For example, they may look at whether you can pay the money back if they later decide that you should be responsible for these costs.

If you and your partner are not going to court or arbitration, you can also make an agreement about who pays for certain expenses while you are still trying to resolve your issues. This agreement can include who pays for an out of court family law professional, such as a mediator.

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To get what you want, you may need to show that you've been abused. For example, proof of financial abuse is relevant if you ask for interim costs (see the step above for information on interim costs). Or, proof that your partner abused your children in the past is relevant if you ask for supervised access.

It is important to give the judge or family law professional specific and detailed information about the family violence you have experienced. You want the judge to understand:

  • the pattern of abuse -- how often it happened and what caused it
  • how long it has been going on
  • whether it is getting worse
  • your safety concerns, based on past or current abuse

They also need to know whether your children are safe. You need to tell them about any:

  • threats your partner has made about your children
  • times your partner has taken and not returned your children
  • how your partner has harmed your children
  • information that shows your partner is planning to leave the country

You should also gather other evidence of the abuse or neglect. There are many types of partner abuse. Your evidence might include:

  • records of 911 calls
  • criminal charges, bail conditions, or terms of probation
  • evidence that your partner did not follow a family court restraining order in the past
  • hospital reports, if you went to the hospital for treatment after an assault
  • photographs of injuries
  • evidence your partner stalked you after you separated
  • emails, letters, text messages, voicemails, or social media posts that show abuse, violence, control, or harassment
  • documents from a Children’s Aid Society that show how they’ve been involved with your family

You can also get other people to give evidence for you, such as

  • your family doctor, if you talked to them about the abuse
  • your religious leader, if you turned to them for support
    your employer or co-workers, if they witnessed abuse, violence, or harassment
  • friends, family members, or neighbours, if they witnessed abuse, violence, or harassment
  • school teachers and day care workers, if the children spoke about or showed signs of abuse at home
  • shelter workers, therapists, or counsellors, if they have helped you

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