Family Law

This section of the resource provides information on:

Why Family Law is Important to Women Experiencing Violence

Women who are considering leaving an abusive relationship are frequently most concerned about their children. Abusive men will sometimes threaten to take the children away from the woman as a way of controlling her and keeping her in the abusive relationship.

Women are also often very concerned about how they will support themselves and their children. Where will they live? How will they buy food and clothes and pay the rent?

It is important that women know their legal rights and the processes by which a court can give them custody of children, the right to remain in the family home, child support, spousal support and in some cases, a share in the value of property owned by the couple.

Where Aboriginal women can access legal information, support or representation on family law issues, VAW support workers should encourage them to do so. It’s important that women understand their legal rights and options if they are considering leaving an abusive relationship.

What is Family Law?

Every province and territory in Canada has laws that govern the rights and responsibilities of spouses and parents during the spousal relationship and when that relationship breaks down. Married couples are also governed by the federal Divorce Act.

Family Law Issues Covered in this Resource

What is Family Law?

Family law is a general term referring to any of the laws that make rules about family relationships. This can include rules about how to marry, who can get married, how to separate or divorce, how adoption works, and how to protect children who are not being properly cared for.

Family law includes federal and territorial [or provincial] legislation and regulations. It also includes decisions made by judges about family relationships and responsibilities and rights of the people in those relationships.

NWT Family Law Handbook, p.1-1

The Building Service Capacity training and this resource focus on four areas in family law:

  • Custody of and Access to Children
  • Child support
  • Occupation of the Family Home
  • Restraining Orders

The training and this resource do not cover other important areas in family law of which women should be aware, including:

  • Spousal Support
  • Division of Property
  • Alternative Dispute Resolution

This resource will, however, provide links to helpful plain language web resources on family law which will give additional information on child support, spousal support, division of property, and other topics such as alternative dispute resolution processes for resolving family law disputes.

Key Concepts in Family Law

  • Best Interests of the Child
  • Custody and Access
  • Relevance of Family Violence
  • Status quo
  • Best Interests of the Child and Reasonable Conduct

Best Interests of the Child

What is in the “Best Interests of the Child”?

The judge considers many factors when deciding what is in the best interest of the child, including:

  • the child’s normal routine;
  • how settled the child is in his school and community;
  • who the child’s primary caregiver was before the parents were separated;
  • whether there has been violence against a member of the household or family;
  • which parent the child is closer to;
  • what cultural issues, if any, need to be considered;
  • how open each parent is to providing ongoing contact with the other;
  • whether there will be ongoing interaction with the child’s extended family; and
  • what each parent’s parenting plans are.

NWT Family Law Manual (2007) p.2-19

In the Building Service Capacity training sessions, the family law issues that participants said were most important to the women that they worked with were:

  • keeping their children safe
  • having custody of their children
  • having a place to live

Under family law, all decisions that affect children, including where the children will live, whether the mother should have the right to exclusive occupation of the family home, and arrangements for custody and access (described below) are guided by what would be in the “best interests of the child”. Historically, the “best interests of the child” test has been influenced by Western colonial cultural standards and assumptions which have negatively impacted Aboriginal parents, children and communities. Today, there is or should be greater understanding and recognition of the importance of maintaining and nurturing Aboriginal children’s ties to their culture, language and community or communities.

The paramount consideration in applications for custody and access in family law is the best interests of the child.

Women who want sole custody of the child or restrictions on the father’s access to the child because of family violence must frame their arguments to the court in terms of the child’s best interests. This is explained further in the section on Relevance of Family Violence below.

Custody and Access

The terms “custody” and “access”, like many other Canadian legal terms, do not necessarily translate into Aboriginal languages and cultures.

In provincial, territorial and federal law, “custody” refers to the legal right to (and responsibility for) making decisions about the child, such as decisions about medical care and education. A parent may have legal custody over the child even if the child does not live with them.

The term “custody” is sometimes confused with where a child lives. Where the child lives is sometimes referred to in legal language as “residential care” or “primary residence”.

Legally, until a Court makes a custody and access order, both parents have equal legal rights to make decisions about their children.

There are four kinds of custody:

Sole custody – A parent who has “sole custody” has the right to make decisions about the child’s upbringing without involving the other parent. Usually the child lives with the sole custody parent.

Joint custody – Parents with “joint custody” are equally entitled to make decisions about the child or children. This means that they must make decisions together in the best interests of the child. This can be very difficult if there has been abuse or the parents have a high conflict relationship. Joint custody does not necessarily mean the child spends an equal amount of time living with each parent. In fact, a child could live with his mother all the time and see his father only on “access visits” during the summer and winter vacations but the parents might still have “joint custody” in terms of equal input into major decisions about the child’s life.

Shared custody – The phrase shared parenting is generally used to describe situations in which the children spend at least 40% of their time with each parent. Shared custody usually requires both parents to be living in the same community or city. It also usually involves both parents having equal input into decisions about the child. The term is found in the child support guidelines. Sometimes men will ask for shared custody so that they will be required to pay less child support.

Split Custody – Split custody refers to situations where there are two or more children and the children are split between the homes, for example, three children live with the mother and one child lives with the father. Split custody can involve different variations of legal responsibilities by parents, for example the mother may have sole custody of the children who live with her or both parents may have joint custody over all of the children.

Access

Where a child lives with one parent, the other parent will almost always have the right to spend time with the child. This is called “access”.

Access can be ordered by the Court or arranged by agreement between the parents, such as in a separation agreement drafted by them. Custody and access agreements or court orders can be very specific about who has the child when, including during the school-week, vacations and culturally important times of year. For example, the child may live with the mother but spend every other weekend, from 6pm on Friday to noon on Sunday, with the father.

Access orders or agreements, however, may also be drafted in general terms. For example, sometimes the Court Order or agreement will say that the parent who doesn’t live with the child shall have “reasonable and generous access” and leave it to the parents to arrange the visits. This works best when the parents can co-operate.

Varying Custody and Access Orders and Arrangements

Sometimes circumstances change after the Court makes an Order or the parents agree to a custody and access arrangement.

It is possible to go back to Court to request an amendment or change (“variation”) of the court order. The Court will consider why the change is being requested and whether it is in the best interests of the child.

Relevance of Family Violence

Most provincial and territorial family laws require the Court to consider whether there has been violence in the family when making custody and access orders.

The presence of abuse is relevant to:

  • the parenting ability of the abusive parent
  • the best interests of the child in visiting with that parent, living with that parent and/or that parent having the right to make decisions about the child.

For example Ontario’s Children’s Law Reform Act says:
24(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,

  1. his or her spouse;
  2. a parent of the child to whom the application [for custody or access] relates;
  3. a member of the person’s household; or
  4. any child.

The Manitoba Family Maintenance Act says:
39 (2.1) in determining a child’s best interests…the court shall consider all matters relevant to the best interests of the child including, but not limited to, the following:

(c) the impact on the child of any domestic violence, including consideration of

  1. the safety of the child and other family and household members who care for the child,
  2. the child’s general well-being,
  3. whether the parent who perpetrated the domestic violence is able to care for and meet the needs of the child, and
  4. the appropriateness of making an order that would require the parents to co-operate on issues affecting the child.

Where the children were abused

If there is evidence that the violent man has been abusive to the children, it is very unlikely that a court would give him custody of the child.

He may, however, be granted access to the children, if such visits are safe and are in the children’s best interests.

“Supervised access” is the legal term for access orders which require someone to “supervise” the abusive parent’s visit with his children. In some locations there are ‘”supervised access centres” where trained staff assist with the supervision. This may be a good option for families who don’t have a friend or family member appropriate to do the supervision or where it would be helpful or safer to have an independent third party play this role. Supervised access at an unfamiliar location, however, may be less comfortable for the children.

Where the woman was abused

Evidence that the father was abusive to the mother does not necessarily mean that he will be denied legal or physical custody of, or access, to the children.

If an abusive man seeks custody of his children, whether sole or joint custody, the Court will consider evidence of abuse as one factor in determining what is in the best interests of the children.

For this reason, it is essential that women who have experienced abuse, present that evidence to the Court -“tell their story to the Court” – in a way which explains how:

  • the abuse is relevant to the father’s ability to properly parent the children; and
  • is relevant to the best interests of the children. For example, if the father is seeking joint custody – equal right to make decisions – with access visits on the weekends, the evidence of abuse may explain that:
  • the father’s request for joint custody is in fact an effort to continue to control the woman and children and continue the dynamics of abuse
  • custody will put the woman and children at risk of ongoing harm
  • the relationship between the parents is high conflict or coercive and requiring the parents to co-operate in a joint custody arrangement would not be in the best interests of the child
  • there has been post-separation violence or abuse thus making joint custody inappropriate
  • requiring the mother to have ongoing contact with the father over decision-making or sharing of time with the children will provide opportunities for physical or emotional violence which will be harmful to the woman and the children
  • the father has a serious mental health or substance abuse issue that will impact on his ability to fulfill joint custody responsibilities to the children and the mother or otherwise pose a safety risk to the mother and children

Custody & Access and the “Status Quo”

The best interests of the child test places emphasis on maximizing stability and minimizing disruption and instability in a child’s life as a result of the parent’s separation.

As a result, judges tend to favour preserving the “status quo” (the way things are for the child) if the status quo is in the child’s best interests, that is, in a home that is a healthy, nurturing, stable environment.

For women in abusive relationships, the concept of “status quo” may be important to their safety planning or transition out of the abusive relationship. If they were the primary caregivers to the children and want to continue to be the primary caregivers, they will want to create a new “status quo” that is as stable and least disruptive as possible for the children.

Custody & Access and the Importance of Reasonable Access

In general, family law assumes that it is in the child’s best interests to have a relationship with both parents, as well as other family members.

This means that even in cases of family violence, women are expected to ensure that the father is given reasonable access to the child, unless it is clear that this would be unhealthy or unsafe for the child.

It is helpful for women to document their attempts to give the father access and to demonstrate the reasonableness of their behavior and efforts.

For example, VAW support workers can encourage women to keep copies of texts or emails to their spouses: “You can visit the children at my sister’s house anytime on Sunday and on Wednesday afternoon.”

If the father is offered access and either doesn’t respond, is late or doesn’t show up, it is important to carefully document this too. A calendar can be very useful in helping keep records. For example, a note on a calendar on Feb 4: “Jayko ready at 5pm, John came 1 ½ hr late at 6:30, stayed 10 min and left.”

If the woman does not want to facilitate access to the children because of serious safety concerns for herself or the children, she should similarly be encouraged to document the facts supporting these concerns as much as possible.

Child Support

What is Child Support?

A child has the right to financial support. Parents have a joint responsibility to maintain the children of the relationship. Child support is the amount of money one parent pays to another parent for the financial support of a child.

NWT Family Law Manual, p. 2-21

Provincial/territorial and federal Child Support Guidelines are laws that explain how much support must be paid, depending on the incomes of the parents, the child’s special needs and the time the child spends with each parent. The Guidelines are law but they is some flexibility to account for different families’ situations.

The Useful Resources below provide you with more information about how to calculate child support in your province or territory.

Women’s Safety and Custody, Access and Child Support

Child support is the right of the child. A parent cannot “waive” – decide that the other parent doesn’t have to pay – child support.

The reality, however, is that women will sometimes choose NOT to pursue child support from an abusive spouse because they feel that safety is paramount and that bringing court proceedings for child support could provoke more violence or abusive interactions.

Similarly, lawyers will usually advise women to formalize their rights to custody.

An excellent resource from Springtide Resources states that abusive men often use custody and access as a way to try to maintain control over or intimidate their partner. It’s very important for a woman with children who’s leaving an abuser to move quickly to establish legal custody of her children to prevent him from claiming she’s abducted them or from simply taking the children and refusing to let her see them. More on Springtide Resources recommendations can be found here.

Women should speak to a lawyer or legal support person as soon as possible about custody in order to make a decision about what is best for their individual circumstances.

This resource recognizes that women in abusive relationships, however, will also need to think through what is safest for them, including their safety plan and the potential risks of escalation of violence if court proceedings are commenced.

In the training sessions, we were told that, except in Nunavut where the family law legal resources were the most limited, legal information resources (like the Family Law Information Centres in Ontario) or access to legal aid representation (for example in Manitoba and NWT) is available for First Nation, Métis and Inuit women experiencing abuse.

VAW support workers can greatly assist in connecting women with these important resources so the decisions they make are as informed as possible.

Occupation of the Family Home & Restraining Orders

Family law legislation in all provinces and territories includes provisions that allow the Court to make orders giving the woman and her children the right to remain in the family home, short or long term, and to order the man to stay away from the woman and her children, similar to the conditions of emergency protection orders under civil law or conditions of release under criminal law.

In some jurisdictions whether a couple is married or common-law may be relevant.

In jurisdictions where women can apply for Emergency Protection Orders [LINK blue text to EPOs in Protection Order section of the website], this is the best legal option for urgent situations.

In Ontario, where there is no family violence legislation, urgent orders from the family court are the only legal option for a civil – as opposed to criminal – “no contact” (restraining) order.

In jurisdictions where there is domestic or family violence legislation, applications for exclusive occupation of the home and restraining orders under family law are usually only made where the woman is already asking the court to make a custody order and perhaps other orders, like spousal support, child support or division of property.

How to Tell Your Story in Family Court

It is critical that women effectively tell their stories to their lawyers and to the Court.

VAW support staff can play an important role in helping women gather the evidence and tell their story in a way that will best be heard and understood by the Canadian legal system.

The Building Service Capacity training sessions referred participants to excellent resources developed in Ontario by two women’s rights organizations: Luke’s Place and Springtide Resources and presented in various formats, including as webinars in partnership with Community Legal Education Ontario (CLEO) and Your Legal Rights. Some of these resources are listed below in Useful Resources.

In particular, reference was made to the webinar Presenting Evidence of Abuse in Family Court  developed by Luke’s Place Support and Resource Centre for Women and Children.

These resources provide useful information on:

  1. What information about the abuse should be included?
  2. How do women prove the abuse?
  3. How should the information be presented and organized?

What information about abuse should be included?

The categories of information that a woman’s lawyer and the Court will need to know include:

  • The length of the relationship
  • The time period(s) of the periods of abuse
  • The pattern of the abuse
  • Whether the abuse was getting worse
  • Whether the children witnessed the abuse
  • Whether the woman, children or other family members suffered physical injuries
  • The impact of the abuse, emotionally and psychologically on the woman and her children
  • Any safety concerns the woman may have at the time of making the application, for herself, her children or other family members

How can women prove the abuse?

In some cases there will be little to no documentation of or witnesses to the abuse and the evidence (“proof”) of the abuse will come from the woman telling her story.

VAW support staff can help women identify possible sources of evidence to help women better present their story to the court.

The possible sources of evidence include:

  • Records of 911 calls to the police or RCMP
  • Copies of police occurrence or incident reports [Copies of 911 calls and incident reports can be requested under freedom of information procedures]
  • Evidence of criminal charges against man and copies of any undertaking, bail or probations conditions and evidence of any breaches of these conditions
  • Breaches by the man of any EPOs or family law orders
  • Hospital records
  • Photos of injuries or damage to property
  • Evidence of post-separation stalking or harassment
  • Email, text, voice mail message or other communications from the man that demonstrate his abuse, coercive control and/or harassment
  • Evidence of witnesses to the abuse or the effects of the abuse, such as from:
    • Neighbours
    • Other family members
    • School teachers
    • Social workers

How should the information be presented and organized?

  • Start with a description of the woman and the family:“I am Tanya Smith. I am 42 years old. I lived with John Smith for 12 years. We have three children. John Jr., aged 10, Celine, aged 8, and Mary aged 4.”
  • Start with the most recent event or events relating to the abuse and then move back to the beginning of the relationship
  • Separate facts into numbered paragraphs
  • Each event or set of facts should have its own paragraph
  • Be direct and specific
  • Use simple language
  • Be factual
  • Don’t exaggerate or over-play the seriousness of the abuse
  • Don’t underplay or minimize the abuse
  • Stay focused on the legal issues:
    • For example: Why the applicant woman is concerned about John’s parenting and why her having sole custody is in the best interests of the children.
  • Frame the evidence in terms of the abuse having an impact on the abuser’s ability to act as a parent
  • Don’t make general assertions without factual explanation. For example, don’t say “the children are suffering emotionally” without explaining, factually, why and how:
    • For example: The children are suffering emotionally. John Jr.’s grades have dropped and he’s starting to fight at school. Four months ago, Denise started to self-harm and was taken to the clinic for help.

Using an Affidavit to Tell Your Story in Family Court

In a family law case, an affidavit can be used by a woman to tell her story. More information on this can be found in the document Specific aspects of family law and court in the Family Court Support Worker Program Resources on the Springtide Resources website, which can be accessed without cost by setting up an account on the site. The Family Court Support Worker Program Resources materials were created by Luke’s Place Support & Resource Centre, and funded by the Ontario Ministry of the Attorney General Victim and Vulnerable Persons Division.

How VAW Support Workers Can Help

VAW support workers can:

  • Help connect women to legal resources, including
    • On-line
    • Summary advice over the phone
    • Legal representation
    • Other community legal information resources or legal aid clinics
  • If the woman doesn’t have a lawyer: help the woman gather her evidence and put her story into the logical, orderly, unemotional format of the affidavit above
  • If the woman does have a lawyer: similarly help the woman gather her evidence and put her story together in preparation for meeting with the lawyer
  • Attend the meeting or meetings with the lawyer with her
  • Arrange translation services, for court and/or meeting with the lawyer
  • Make sure the woman understands what the lawyer is saying to her and that she asks questions
  • Explain to the woman that she can disagree with her lawyer and that sometimes women have to “advocate” (stand up for) themselves with their own lawyer
  • If the abusive spouse opposes the family court proceeding, prepare the woman for the fact that he may try to:
    • Deny or minimize the abuse
    • Say she is abusive
    • Say she is lying
    • Present the woman as a bad and incompetent mother.

Key Information for Women About Family Law

Women engaging in the family law system should:

  • Seek out referrals in the community for legal representation or, if that is not available, legal information and support
  • Understand the key concepts described in this resource:
    • Custody
    • Access
    • Best Interests of the Child
    • Status quo
    • Importance of being (and appearing to be) balanced and reasonable
    • Child support
    • Property division or sharing in value of property, possession of the family home and restraining orders
  • Document, document, document.
  • It is difficult for all abused women, particularly those who have experienced or are experiencing complex trauma, to describe the abuse in a linear, orderly, “this happened and then that happened” manner. We know this, yet the law expects stories to be told in this way. To the extent possible, women should be encouraged to take notes, keep or collect documents like text messages or voice mail messages, and get support in keeping records of the abuse.

Current as of January 2014.

Useful Resources

Manitoba

Ontario:

Aboriginal-specific Family Law Resources (Ontario)

Family Law Webinars and Audio-courses:

Family Law Statutes

Federal Law:

Provincial Laws

Alberta:

Saskatchewan:

Manitoba:

Ontario:

Northwest Territories:

Nunavut: