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Violence and Family Law

Changes to the federal Divorce Act addressing family violence have come into effect March 1, 2021.   For the purposes of the Act, family violence is broadly defined to include any conduct by a family member towards another family member that is violent, threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their safety.  In the case of a child, the direct or indirect exposure to such conduct is also included.  The definition also includes a non-exhaustive list of examples of conduct that constitute family violence.

Can intimate partner violence influence how agreements are made?

Family law allows parties to come to agreements about their separation that can be signed and become enforceable. However, negotiating a separation agreement when there is intimate partner violence can be extremely difficult for victims.

An abuse victim may find it very difficult to be in the same room as their abuser. They may become timid or not voice their interests. They will not have equal bargaining power. Their abuser may use the negotiation or mediation process to continue to exert control.

Who can help victims of intimate partner violence negotiate a fair agreement?

A safe and trauma informed negotiation and mediation process can be safe for victims and assist them to resolve their family law issues quickly and consciously with assistance. There are experienced family law lawyers who can assist with negotiations.

Additionally, there are shuttle mediation services available if abuse is disclosed or noticed by mediators. Shuttle mediation ensures that the parties are in different rooms and the mediator “shuttles” between them in order to assist in coming to an agreement.

Do courts need to consider Protection Orders in requests for child or spousal support?

One of the amendments provides that where there is a request for corollary relief related to parenting issues or a support order, a court will have to consider if there are any civil or criminal court Protection Orders in place, or proceedings in relation to such an order, between the parties or a child Protection Order or proceeding.

This new provision is meant to facilitate the identification of existing orders and similar proceedings that might conflict with an order made under the Divorce Act, and to facilitate the coordination of multiple proceedings between the same parties in different courts.

Do courts need to consider family violence when making orders related to parenting?

The amendments include a non-exhaustive list of criteria addressing best interests of the child that a court must consider when making an order related to parenting issues.  One of the criteria that a court must consider is the presence of any family violence and its impact on the ability and willingness of any person engaged in the family violence to care for and meet the needs of the child.

In general, does the court process look different if someone is experiencing intimate partner violence?

The family law judges cannot make decisions about domestic violence and how it effects the “best interest of the child” until it is disclosed to them via evidence. This evidence includes affidavits from victims, affidavits from witnesses, letters from victim services, medical documents that can be accessed using (The Personal Health Information Act) PHIA, records from third parties including, Police, Child Family Services and Winnipeg Child Access Centre or any other third parties involved and expert reports that rely on this information.

Family Court Judges at the court of Queen’s Bench can provide rulings on many issues that effect both victims and abusers in domestic violence cases. These decisions include but are not limited to providing exclusive occupation of the family home, care and control and custody of the children, supervised or limited care and control to one parent due to violence that effects the children, limiting or prohibiting communication and contact between spouses and common-law partners and other types of protective reliefs. The Family Court Judges can also provide Prevention Orders under The Domestic Violence and Stalking Act, hear applications of Respondent to set aside a Protection Order granted by a Judicial Justice of the Peace if there are other family law matters that need to be resolved.

To enter into the court process legal advice is recommended. For women who are leaving domestic violent relationships A Woman’s Place will provide a free legal consultation to ensure that they are not prevented from accessing legal advice in a confidential and no obligation scenario from a lawyer due to the financial control or constraints they experience from their partner or ex-partner.

For more information on Court Process, please review Court System and Procedure section.