Domestic Violence
What is domestic violence?
Many think domestic violence is just physical abuse at the hands of a romantic partner. However, domestic violence, or family violence, can take many forms and typically takes on many forms simultaneously, including:
Sexual abuse/assault:
this is any form of forced sexual activity including forcing physical acts, watching sexual acts, watching pornography or ridiculing sexual performance or sexual organs.
Psychological/emotional abuse:
victims are often unaware they have experienced this form of abuse as it is most insidious and slowly builds in intensity so that it feels “normal”. It includes acts such as: belittling, “crazy making” or gaslighting, controlling, threatening, denying affection, threatening suicide, emotional manipulation, attacks on self-esteem, threats to take the children and threats
to institutionalize.
Social abuse:
this abuse is intended to alienate and isolate the victim and often happens in front of other people. Acts include: restricting or preventing access to family or friends, public insults, put-downs, embarrassing the victim in front of others and “jekyll and hyde” behavior where the abuser is charming with others and aggressive with the victim.
Stalking/harassment
this abuse is designed to make the victim feel unsafe and is often a form of post-separation punishment. Acts include: repeated unwanted phone calls/texts/emails/letters, use of hidden cameras, sudden and repetitive appearances at the victim’s home/workplace/place of worship/school/homes of friends or family, sending unwanted gifts, legal bullying as a way to be in the victim’s life, damage to property, threats to hurt the victim/family/friends/children/pets or using the children as an excuse to be around the victim.
Financial/economic abuse:
this is any act that keeps the victim financially dependent including: withholding money for basic needs, restricting or cutting off access to bank accounts, preventing/forcing the victim to work, threatening to make false reports to Ontario Works, controlling the victim’s spending, using/destroying the victim’s credit, incurring bills in the victim’s name without their consent/knowledge, mismanaging the family income or forcing the victim to turn over financial entitlements/benefits.to institutionalize.
Spiritual abuse:
this involves using the victim’s spiritual or religious beliefs to control them and includes: preventing the victim from practicing their religious beliefs, preventing them from attending their preferred place of worship, forcing them to attend a particular place of worship, forcing the victim into a cult, punishing, ridiculing or putting down the victim’s religious beliefs and/or practices.
Technological abuse:
this form of abuse exploits various technologies and includes acts such as: installing GPS on victim’s devices, property, vehicles, manipulating smart home devices to spy, scare, make the victim feel unsaf, crazy, spying on the victim’s phone, computers, online accounts, sending threatening, mean, upsetting texts, emails, social media message, posting about the victim on social media, tampering with online accounts (social media, email, bank, utility) or impersonating the victim online and creating false social media profiles, email accounts.
Immigrant abuse:
this affects individuals who are do not have legal status in Canada, refugees, sponsored immigrants and includes acts such as: threats of deportation, withdrawing sponsorship, reporting to authorities, controlling access to passports, identification, denying access to ESL/ASL classes, interfering with the victim’s ability to learn Canada’s laws as they affect their legal rights, threatening to take away financial support, lying about, denying access to information about their legal status or status of their immigration, refugee case or threatening to remove the children from Canada.
Legal bullying:
this involves using the family law courts to assert power over the victim and to intimidate. Acts include: initiating unnecessary court proceedings, delaying disclosure or responses, dragging out proceedings to cost the victim more legal fees to financial drain, self-representing, making false criminal allegations to police about the victim, refusing to comply with court orders (not returning/picking up children on time), pressuring mediation or joint custody in exchange for other legal trade-offs, or threatening self-harm or suicide if the victim does not stop court proceedings.
What do domestic violence lawyers do?
Domestic violence lawyers assist with family law matters generally but many have specialized training or experience with domestic or family violence. This training or experience enables domestic violence lawyers to ensure the issue is appropriately addressed and communicated in court materials and pleadings. Domestic violence lawyers are attuned to the long lasting role and impact domestic or family violence plays in family dynamics and the lives of the affected family members.
of your life and
your family
How does domestic violence affect family law matters?
Domestic violence does not necessarily stop when the victim leaves the abusive relationship. In fact, often, separation will trigger new/more intense acts of domestic violence.
At Smith Law we recognize the pervasive and insidious nature of domestic violence. Our domestic violence lawyers are acutely aware of the profile of a domestic abuser – their nature and behaviours. Domestic violence plays an omnipresent role throughout a family law proceeding:
- Domestic abusers frequently use family court proceedings to continue to abuse
- Victims face unique challenges during a family law proceeding with their domestic abuser
- Courts should be aware of domestic violence issues (past and present) and the active role they play in the court proceeding
- Certain activities are inappropriate such as mediation, unsupervised access, direct communication between the parties
- Pleadings, settlements, parenting plans and court orders need to be drafted in particular detail to curtail further opportunities for domestic violence
Most importantly, our domestic violence lawyers are aware of the safety risks that victims of domestic violence face. When appropriate, we use domestic violence screening assessments to helps us identify safety risks. Our domestic violence lawyers work with victims of domestic violence in preparing safety plans and help connect victims with various support resources.
Our domestic violence lawyers are also sensitive to our client’s confidentiality:
- We maintain strict solicitor-client privilege so our client’s have the peace of mind to share as much information with us as they feel comfortable sharing.
- We are fully transparent with clients with respect to steps we take and communications with opposing counsel/ex partner and we will not take steps without express and fully informed client consent.
Our mandate is to help restore and empower victims of domestic violence to take control of their lives and families back.
How to get a restraining order
If a person has been abused, fears for their safety or for the safety of their child, they can make a motion to the court for a restraining order (final or temporary) that, if granted, would prevent the abuser from contacting or being within a certain distance of the victim.
Authority for such restraining orders comes from the Children’s Law Reform Act. Section 35 states:
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Section 46 of the Ontario Family Law Act contains a similar provision.
It must be stressed that this provision means abuse does not have to have been committed, so long as there is “reasonable grounds to fear” for their life or the life of their child, they can ask the court for a restraining order.
If you need a restraining order, contact us to today to talk to a domestic violence lawyer.
Other legal issues impacted by domestic violence:
Exclusive Possession of Matrimonial Home
Section 24(3) of the Family Law Act provides, amongst other factors, a court is to consider “any violence committed by a spouse against the other spouse or the children” in making an order for exclusive possession of the matrimonial home.”
This means, if you are preparing to leave an abusive relationship, you can ask the court to give you possession of the home and keep your ex out, and the court must consider the fact that there was domestic violence.
Domestic violence lawyers can help you determine if a a claim for exclusive possession is appropriate in your circumstances.
Custody and Access
In determining access and custody, the courts refer to the the Children’s Law Reform Act. Section 24(4) states:
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
What can you do if you have experienced or are experiencing domestic violence?
Most importantly, if you fear for your life or the life of your children, you should make immediate plans to get to a place of safety.
If you are in the midst of or about to begin a family law proceeding with the abuser, you also need to take steps to protect yourself and your children.
If it is possible, work with a domestic violence lawyer. If this is not possible, so long as you are comfortable doing so, consider disclosing the domestic violence to your lawyer, and feel free to let them know what role you are comfortable the abuse playing in your family law matter.
If you will be including the domestic violence in your pleadings (your court documents such as applications, motions and affidavits), it’s often helpful to take some time to document everything that happened, in as much detail as you can, including the dates (even if approximate) the abuse occurred. If the police, victims services or CAS were involved, you should include that in your notes. This information will help your lawyer make sure the domestic violence is appropriately and fully included in your case. A domestic violence lawyer can help you understand what to document.
At any point in time, if you have an immediate fear for your safety and/or the safety of your children, you can go to court and file an Emergency/Urgent Motion for a Restraining Order. While it is best to do so with a domestic violence lawyer, most family lawyers can assist you and you can also file as a self-represented party.
If my ex partner has abused me, will that help me get custody?
Courts are obligated to consider the fact that a parent has abused the other parent in determining custody and access. It is not a determinative factor, however, the abuse will be a factor the courts use to assess the abuser’s ability to act as a parent. A domestic violence lawyer can help ensure the Court is aware of the domestic or family violence and it’s impact on the ability to parent.
Will the court believe me if I didn’t report the abuse to police?
When you submit statements in affidavit or in testimony, you are presumed to be telling the truth, as these statements are made under oath. So the court assumes you are telling the truth. The court will always consider all the facts and evidence presented.
Can I lose my children if I don’t report domestic violence?
There is a duty to inform the Children’s Aid Society (CAS) only if the children’s safety is currently at risk and they are in need of protection. A CAS investigation does not mean the children will be taken away.
Can my ex partner have me deported?
No. Your ex partner cannot have you deported. Only federal immigration authorities can force someone to leave Canada.
If I was abused by my ex partner, will that get me more spousal support?
Generally, spousal conduct is not a factor in determining spousal support. However, if the abuse has affected the victim’s ability to work or earn an income, then it is likely relevant.