Domestic Violence and Family Law

November 25^th is the International Day for the Elimination of Violence Against Women, and the beginning of a 16-day campaign to raise awareness about gender-based violence.

Intimate-partner violence (also known as domestic violence, spousal abuse, or family violence) often coincides with gender-based violence; women are the vast majority of victims of intimate partner violence. Despite the higher rates of violence against women, however, the information in this article is relevant to anyone experiencing intimate-partner violence.

Issues relating to intimate-partner violence are common in family law; indeed, family breakdown, and the legal and personal struggles that accompany it, often leads to an escalation in violence. While women who experienced domestic violence during their relationship report an increase after separation, many also experience domestic violence for the first time after the end of a relationship. Women are at their highest risk of being killed when they first separate, and the risk continues for several months after.

If you are working with a family lawyer, it is important to disclose any experiences of intimate-partner violence. Intimate-partner violence is underreported, and many people who have experienced or are experiencing it are hesitant to disclose it. Disclosing the abuse to your family lawyer is, however, important, and will impact every decision made in a case. A family lawyer, once they know or suspect there is an element of abusive or coercive behaviour in the relationship, can take the following steps:

• Engage in safety planning. Is the client in immediate physical risk? Is a restraining order necessary? Is it safe for the client to return home to their partner? In some circumstances, lawyers may work with the Partner Assault Group of the Ottawa police for more significant safety planning.
• Continuously assess safety risks. Lawyers will continuously assess risk to ensure they are taking the necessary steps to protect their client’s safety through various steps in the family law case. For example, a former partner may become more violent once served with legal documents; knowing this risk is important.
• Do a technology check. It is important for individuals to check their phone and/or computer (including any iCloud accounts) to ensure their privacy interests are protected. Some law firms, like Nelligan Law, can connect their clients with their IT security team to help them secure their technology devices.
• Advise on the best process to enforce your rights. Although negotiation and mediation can be cost-effective and collaborative dispute resolution processes, they can also be inappropriate in cases involving intimate-partner violence. The power imbalances at play can lead to unequal bargaining power with potentially unjust results, and lawyers will often recommend a different approach to best protect their client’s interests.

Recent changes to the Divorce Act ensure that family violence will be considered in determining parenting orders, decision-making authority, and even spousal support. The Divorce Act now defines “family violence” as any behaviour that is:

• Violent; or
• Threatening; or
• A pattern of coercive and controlling behaviour; or
• Behaviour that causes a family member to fear for their safety or the safety of another person. 

While family judges may have taken violence into consideration in the past, they often applied a narrow definition. Defining family violence is a step in the right direction, as is recognizing the nuances of family violence. Despite this progress, however, it is imperative that lawyers stay vigilant in recognizing and understanding the effects of intimate-partner violence on their clients’ cases.

If you or someone you know are experiencing family violence or intimate-partner violence, please contact one of the resources listed below. If you are in immediate danger, please call 911.

• Interval House
• Victim Crisis Unit: 613-236-1222, ext. 2223
• Sexual Assault Child Abuse Section: 613-236-1222, ext. 5944
• Partner Assault Unit: 613-236-1222, ext.5407