Abusive Relationships

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Introduction

There are a number of ways that the law can assist someone who is in an abusive relationship. This publication explains some legal options for dealing with an abusive spouse or partner.

Hopefully, this publication will also make more people aware of relationship violence and help them understand the harm caused. Relationship violence is a complex, serious social problem. It affects not only the victims, but their families, friends and communities. And the personal, social and economic costs cannot be underestimated when it comes to things like physical and emotional injury, substance and alcohol abuse, lost productivity, medical expenses and criminal justice costs.

Abuse between spouses or partners is not just a private problem. Assaulting another person is a crime, whether they are a spouse, a partner, or a stranger. The law applies equally regardless of sex. Both women and men can be the victims of relationship violence and abuse.

Throughout this publication, the word spouse refers to legally married couples and persons living in a legally recognized spousal relationship. Spouses can be same-sex or opposite-sex couples. In Saskatchewan, relationships outside of marriage can be legally recognized as spousal relationships after the couple has lived together for two years or more. The parents of a child can have a legally recognized spousal relationship before two years if they have lived together in a relationship of some permanence.

The word partner, as used in this publication, refers to common law relationships that are not recognized as spousal relationships as well as dating relationships.

It is important to note that some of the laws discussed in this publication apply only to spouses.

About Abuse

The Cycle of Violence

Many believe that abusive relationships are limited to lower-income families or to certain ethnic or cultural groups. This is not true. Individuals from all backgrounds are abused. Often they suffer alone for a long time, not wanting to admit their spouse or partner is abusing them.

Even though there is no such thing as a typical abuser, there is a typical pattern to abuse. It is referred to as the cycle of violence. It has three distinct phases. During the first phase tension, frustration, and anger on the part of the abuser may gradually build up over time. The build-up period may range from days to months, or possibly even years.

As the tension builds, the possibility that abuse will occur becomes greater. At some point an explosion occurs; this is the second phase. The abuse may last minutes or may continue over a period of days.

Following the abuse there is usually a period of relative calm; this is the third phase. It is often referred to as the honeymoon phase. During this phase the abuser is likely to apologize to the victim and try to make amends.

Then the cycle repeats itself.

The Behaviour

The term "abuse" covers a wide range of behaviour that may or may not involve actual physical violence.

Physical abuse is any aggressive behaviour directed at another person, such as pushing, pinching, squeezing, shaking, grabbing, biting, slapping, punching, kicking, choking, etc. It also includes throwing objects or using a weapon. Needless to say, such conduct will often result in serious injuries. But many victims are subjected to varying degrees of physical abuse without suffering physical injury that is visible to the eye.

Sexual abuse is forced participation in any type of sexual activity. No one, including a spouse or partner, has the right to force someone to participate in sexual activity if they do not want to. If force or threats of force are used to gain compliance, a charge of sexual assault can be laid.

Psychological abuse is the infliction of emotional pain and suffering by doing things to control or degrade another person, such as persistent verbal attacks on self-esteem, repeated accusations of infidelity, threats of suicide or harm to others, and control over friends, clothes, and money.

Forced confinement is when someone does not allow another person out of, for example, a house, room, bed or chair.

Abuse towards pets or property is the destruction of or harm to property or animals. This may include the direct or indirect threat that "you are next."

Staying or Leaving

People stay in abusive relationships for many reasons. They may believe their partners when their partners say that the abuse will stop. They may have faith in the traditional family and want to remain a part of it. Possibly they have tried to leave and faced such financial difficulties that they felt forced to return. Some fear retaliation. Others, having lived in an abusive relationship for years, have come to believe there is no alternative and may even feel that they deserve such treatment.

Leaving a relationship and starting out on one's own is difficult enough. When that decision must be made in the midst of the trauma of abuse, it is even more difficult. It is important to understand that leaving an abusive relationship can be dangerous. As you are seeking to regain some control over your life, learn about ways to stay safe and get help. Without help, the abuse is not likely to stop. There are many alternatives to consider. Assistance is available. Do not put yourself at risk.

Safety Considerations

If you are in an abusive relationship, it is important to develop a safety plan and strategies to increase your safety. The strategies which follow are only some examples. Plan ahead and be prepared. Think about what has and has not worked well in the past.

Monitoring of Your Activities

• If you think your activities are being monitored they probably are. Abusers often want to know your every move. Be aware that abusers can easily monitor things like phone calls and computer use. Spyware, recording devices and global positioning systems (GPS), that track your location, are readily available.
• It is not possible to remove all traces of your online activities. If it is not your regular habit it may be dangerous to suddenly start deleting your entire history from your computer.
• If you think your computer activity may be monitored it may be advisable to continue to use it for normal activities, such as the weather or news, and use a safer computer for things like looking for a new job or apartment or finding information about abuse.
• Remember that E-mail and instant text messaging are not confidential ways to talk to someone about abuse or your escape plans. Phones with cords are more private and less able to be intercepted than cordless phones and cell phones. Also, cell phones themselves and telephone bills may display your call history.

Emergency Plan for Crisis Situations

• Plan your emergency exit - determine the quickest, safest route out. If you find yourself in an unstable, explosive situation, try to position yourself close to an exit and away from anything that could be used as a weapon against you. Plan various safe places to go.
• Ask others to contact the police right away if they hear a disturbance. Decide on a code word or phrase that will let others know that you need them to call the police immediately. Shout out for help. You have the right to protect yourself.
• Store a packed travel bag with someone you can trust. Include personal items needed to get you through the crisis. Be sure to include originals or copies of important documents and any required medication. You may want to include something special for your children.
• Keep spare car, house and office keys, credit cards, change for payphones or a calling card, and some cash where you can easily get to it at all times.
• If possible, get your own bank account and credit cards. Try to set enough money aside to get you through until you are able to organize your financial affairs. Arrange to have bank and financial statements mailed to a post office box or trusted friend or trusted family member.
• Find information about local shelters and support services listed on the Abuse Help Lines pages near the front of your SaskTel telephone directory and locate and record emergency contacts.

On Your Own: Safety Plan for Home and Work

• If you live apart from the person abusing you, contact your local police service about crime prevention programs and ideas to secure your home. Change the existing locks and determine other points of entry, such as windows, that need to be secured. Let other people know that your abuser no longer lives with you.
• Get an unlisted phone number. Find out about privacy and security features offered by SaskTel, listed at the front of your SaskTel telephone directory.
• Provide others with a verbal description or picture of your abuser and have a plan to deal with unexpected visits.
• Take different routes to and from regular destinations. Always lock your vehicle doors. Stay alert. Park in well lit areas. Ask a friend or neighbour to escort you.
• Make sure that your children have a safety plan for when you are not with them. Review your plan regularly with your children and make changes as needed. Keep a list of important emergency contacts close at hand.
• Give clear instructions to care-providers, teachers, etc. about who is authorized to pick up or visit your children.

If There Are Children

When parents are living together, they share custody of their children. If parents are separating, they will have to decide who will have custody of the children or how they will share custody of the children. If parents cannot agree, the courts can be asked to determine the matter.

Generally, the best solution is if parents can agree about who will have custody. However, when a parent is caught in an abusive relationship, it is highly unlikely there will be any kind of rational discussion, either about leaving or taking the children. The law says that where a custody order does not exist, it is an offence for one parent to take the children from the other parent with the intent to deprive them of access to the children. An exception is where the children would be in "imminent harm" if they were left at home.

If a person is forced to leave their home for their own protection, and takes the children with them, they should contact a lawyer as soon as possible so that the matter of custody may be settled without delay.

If a person in an abusive situation decides to leave the children in the home temporarily, but ultimately wants custody of them, it is equally important to seek legal advice immediately. If a court is asked to decide matters of custody and access the best interests of the children will be the paramount consideration.

Options

Once an abused individual has decided to get out of the cycle of abuse there are a number of choices to make, including...

• whether to take any legal action
• where to live after leaving
• whether to call the police
• whether to apply for custody of any children

The following sections attempt to provide information that will assist in making these kinds of decisions. A number of different options are available depending on an individual's own circumstances.

Help from the Community

Finding a Place to Go

When a person is being abused they should attempt to protect themselves the best they can and prevent any future abuse. One way to do this might be to leave the home and stay with other family or friends, or check into a motel or hotel. An emergency shelter, safe house, or transition house may also be an option. The RCMP or the police, if requested, will escort the victim out of the family home to any safe place they choose.

The Abuse Help Lines, listed near the front of SaskTel phonebooks, provide information about abuse, counselling and support services, as well as contact information for safe shelters and help lines.

Immediate Financial Assistance

Ideally, a victim of abuse should try to save up a private "nest egg." Even a small amount of money might be enough to buy some time to seek financial assistance or to begin organizing a new life and financial independence. If no money or income is available, emergency financial support may be available at any government office of Social Services, listed in the Government of Saskatchewan blue pages of the telephone book.

When applying for financial assistance, it is important to have the following documents...

• Saskatchewan Health Card
• Social Insurance Card
• personal ID
• birth certificates, including those of the children who are leaving the home
• doctor certificates, or prescriptions for special medication if required

Counselling for the Abuser

If the abuser recognizes their problem they may be willing to get counselling. Regional Health Authorities offer programs that may include treatment programs. The Alternatives to Violence program is available through mental health services in a number of health regions in Saskatchewan. To find out what programs exist in your area, contact your local health region. Treatment by a psychologist, psychiatrist, or counsellor may also be of assistance.

Criminal Law

The criminal system applies to everybody. However, it is important to note that not all forms of abuse are crimes. If an act is a crime, it can be dealt with by the criminal system. An act of abuse that is not a "crime" cannot be dealt with by the criminal system. However, it could well be the basis of an action in the civil court system.

If a criminal complaint is made, it is not the victim who decides to proceed under the criminal law - it is the police or the Crown Prosecutor's office. An abused person does not need a lawyer; a Crown Prosecutor will handle the case in court. The Crown Prosecutor does not act for the victim, but rather represents the public. This is because all crimes are considered to be offences against society as a whole and not only against the individual victim. The victim's role, once the prosecution begins, is that of witness for the Crown Prosecutor in the case against the accused.

Assault

Physical abuse is assault; assault is a crime. An assault is committed when a person intentionally applies force to another without their consent, or threatens to apply force to another when the victim believes that person has the ability to carry out the threat. Physical injury is not required.

The law does not distinguish between assault on spouses and partners or strangers. A spouse has no more right to assault their spouse or partner than to assault a stranger on the street.

Various categories of assault are set out in the Criminal Code. They are...

• assault (also called "common" assault) - where force is used or threatened but there is no physical injury or the injury is very minor
• assault with a weapon - where a weapon, including an object such as a pen or bottle, is used during the assault
• assault causing bodily harm - where the assault results in bodily injury of such an extent that it interferes with health or comfort
• aggravated assault - where the injury is so severe that it amounts to serious wounding or maiming for life

Stalking or Criminal Harassment

Stalking is an offence called criminal harassment under the Criminal Code. Criminal harassment is behaviour that causes another person to fear for their safety or for another person's safety. Behaviour that the law prohibits includes repeatedly following a person from place to place, repeatedly communicating with a person, watching their home or workplace, and engaging in threatening conduct directed at them or any member of their family.

If the offence is prosecuted as a summary conviction offence, the penalty for criminal harassment can be a fine of up to $5000, a jail term of up to 6 months, or both. If prosecuted as an indictable offence, a person could be jailed for up to ten years. The Crown Prosecutor decides how to prosecute the case.

There are other abusive acts that are Criminal Code offences. For example, if a person damages the property of another, or prevents another from enjoying or using their own property, they can be charged with the Criminal Code offence of mischief. Causing a disturbance and uttering threats are other examples.

Calling the Police

The Crisis

It may be possible to leave or call the police before a situation turns violent or abusive. If assaulted, it is generally best to leave, if at all possible. If contacted, the police may be able to prevent future abuse and provide some immediate protection.

In a crisis situation it is important for the victim to tell the police whether their life, or that of their children, is in danger, or if a weapon is being used. It will help the police to assess the urgency of the call. Be as clear as possible.

When the Police Arrive

When the police arrive they will assess the situation. If the abuser is violent they may be restrained. They will ask the victim questions privately about the situation to gather evidence about the assault. The police will decide whether there is sufficient evidence to lay charges.

Some of the things the police will want to know are...

• Are there any visible marks of violence?
• Is there other evidence of assault, such as overturned furniture or torn clothing?
• Is there a past history of assault?
• Were there any witnesses to the assault?

Medical Assistance

If necessary, the victim should get medical attention for any injuries. Medical reports and photographs that document any injuries can also be helpful if the matter goes to trial.

Keep a Record

A victim's testimony is an important part of the proceedings if the matter goes to trial. However, it is usually a few months before the trial takes place and by that time it may be difficult to remember all the details. For that reason it is a good idea for the victim to write down what happened as soon as possible while the details are still fresh.

Laying the Charge

Police must treat assault or criminal harassment against a spouse or partner as they would any other case. They are required to lay a charge if they have reason to believe that there has been an assault or criminal harassment.

In the past, the police were often reluctant to lay a charge themselves even when they had reasonable grounds to believe that an assault had been committed. If a spouse had been assaulted by their own spouse or partner and wanted to proceed with criminal charges, they had to lay the complaint. The police would need their cooperation to proceed. The fear was that all too often a spouse could be convinced by their spouse or partner not to give evidence against them in court and if a victim chose not to give evidence, the Crown Prosecutor would have difficulty proving the case.

Crown Prosecutors now handle assaults by spouses and partners the same as any other assault. The police are directed to lay the charge themselves if they have reasonable and probable grounds to believe that an assault has taken place. The Crown Prosecutors' offices are directed not to withdraw charges merely because the victim is reluctant to testify, or because there is a prospect of reconciliation between the parties.

This change in procedure accomplishes two things. First, it has made society more aware that assaults between spouses and partners are as serious and as wrong as assaults against strangers.

Second, it has improved the situation somewhat for the victim of abuse. It provides some degree of protection because once charges have been laid the matter is out of the victim's hands. They cannot be bullied or threatened into asking that the charges be dropped. It is up to the Crown Prosecutor to decide whether the case will proceed. If the abuser tries to interfere with the case - for example by threatening the victim or asking them to lie - additional criminal charges may be laid.

After Charges

Even if charges are laid, a victim may not be safe from their abuser. The police decide whether or not to arrest the accused when the charges are laid. If the police believe that the accused is no longer a danger to the victim they may serve a summons requiring the accused to attend court on a certain date and time to answer to the charge without arresting them.

Even if the accused is arrested by the police and taken to the police station they may still be released. The police do not have to inform the victim of the release. If it is believed that the accused might still be a danger to the victim, it is possible that conditions will be attached to their release. Conditions of release for an accused person can include the following...

• limited or no contact with the victim
• limited or no contact with the couple's children
• no access to certain property
• such other conditions as are reasonable in the circumstances

A victim can recommend appropriate conditions for their own protection. Such recommendations should be made to the police officer that investigated the assault or harassment or the Crown Prosecutor.

Any conditions imposed at the time of release remain in effect until the entire case is over, unless the court specifically changes them. Either the accused or the Crown Prosecutor can apply to the court to have these conditions changed. If the victim thinks the terms imposed on the accused are too harsh or too lenient, they can speak to the Crown Prosecutor. If the prosecutor agrees they may make an application to the court to have the conditions varied.

If any condition is broken, a separate criminal offence known as "breach of recognizance" or "breach of undertaking" is committed. If this happens and the victim is aware of it they should report it to the police immediately.

Going to Court

After a charge is laid, the person charged with the offence is called the "accused" and the victim is called the "complainant."

When a charge is laid, the accused is given a date and time to appear in court. On that day the accused will have to answer to the charge. They have three choices...

• plead guilty to the charge
• plead not guilty to the charge
• request an adjournment to get a lawyer to prepare for their case

If the accused pleads guilty to the charge, they will be sentenced. The judge may adjourn the matter to another date for sentencing. If the accused pleads not guilty to the charge, a trial date will be set. The trial date may be months away.

During the trial, the Crown Prosecutor will call the complainant to give evidence before the court. Evidence must be given under oath or a promise to tell the truth. The complainant must also answer questions asked by the lawyer defending the accused person.

The Crown Prosecutor may also call other people who have evidence to give in support of the complainant. These witnesses could include anyone who witnessed the assault or stalking behaviour, or others such as the investigating officer or medical personnel who may have examined the complainant after an assault.

When the Crown Prosecutor is finished presenting evidence, the lawyer for the accused may call witnesses. The accused does not have to testify but may do so if they wish.

Domestic Violence Court In some centres in Saskatchewan there is a special court to deal with domestic violence cases. These courts are designed to deal with the specific needs of the victims of domestic violence, their families, and the accused. They provide for early intervention and a multi-disciplinary approach to dealing with domestic violence. The accused can choose to plead guilty and have their sentencing postponed until they have completed a treatment program. If the abuser successfully completes the program, the judge will consider this when determining a sentence. Support is provided to the victim throughout the process. Victims can be assisted with safety planning, varying release conditions, preparing for court if there is a trial, and preparing victim impact statements. Victims can also receive referrals for counselling and updates on the accused's progress.

Victim Testimony

Sometimes a victim who has been assaulted or stalked does not wish to give evidence against their spouse or partner. However, in some cases they will be required to do so. Witnesses and victims have a vital role to play in the administration of justice. Their testimony is a very important part of the Crown's case against the accused. To ensure that all the facts in a case will be presented to the court, witnesses and victims may be required to give evidence.

If the Crown Prosecutor wants the spouse or partner to testify, they will receive a document called a witness subpoena. This means they must go to the court at the time indicated on the subpoena. Usually the Crown Prosecutor will contact them before the date of the trial, so that they can go over the information before the trial. If called to give evidence, they must truthfully tell the court what happened whether they want to or not.

Witnesses and victims may have fears and concerns about testifying in court. They may be worried about giving personal information. They may fear retaliation. They may be unsure about understanding and answering questions well. They may be worried about not remembering important dates, times, or other details. These concerns are normal. The Crown Prosecutor and provincial victim/witness services can provide witnesses and victims with information about what to expect in court and options that may make testifying easier.

It is important for witnesses and victims to get the assistance they need to enable them to appear and testify in court as required. If a person, including a witness or victim, ignores a subpoena to appear in court they can be arrested and brought before a judge. If a witness or victim refuses to testify in court they could be held in contempt of court and face a fine, or jail, or both. Witnesses and victims should ask the Crown Prosecutor or victim services personnel to help them prepare to testify in court.

In cases where a victim wants to have charges dropped, they may be referred to a victim/witness coordinator for review of the case. The victim/witness coordinator can also help prepare and assist the prosecutor in preparing a reluctant or frightened witness for court.

A victim's testimony is very important to the case. Sometimes it is the only evidence available and a charge of assault or criminal harassment may be proven solely on that evidence.

The Judge's Decision

After hearing all the evidence, the judge must find the accused either guilty or not guilty. The accused will not be convicted unless guilt is proven beyond a reasonable doubt. A finding of not guilty does not mean that the accused did not commit the crime or that the judge did not believe the victim. It may simply mean that there was not enough evidence to prove the case beyond a reasonable doubt.

It is difficult to define the notion of "reasonable doubt." Generally a person cannot be convicted of a crime if, after considering all the evidence, the judge or jury is unsure whether the accused committed the offence. To convict, the judge or jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the offence.

The Sentence

If the accused pleads guilty or is found guilty by the judge, they will be sentenced. The victim should understand that the accused is being sentenced only for the offence before the court. Often a victim will suffer many assaults or much harassment before they finally go to the authorities. Victims might feel that the court should take the entire history of their abuse into consideration. If they understand that the court has no choice but to pass sentence for the current offence only, there is less chance that they will feel that they have not been given proper consideration.

After a successful prosecution, Crown Prosecutors are directed to provide the court with victim impact information, to advise of appropriate treatment programs, and to seek appropriate penalties, including jail time.

The sentence will depend on a number of factors, including the severity of the assault or harassment and previous convictions. When the victim of an assault is the spouse or the child of the accused it is considered an aggravating circumstance that can result in a harsher sentence. There are various options for the judge, who must decide the appropriate sentence...

Absolute Discharge - With an absolute discharge there is a finding of guilt but the offender will not receive any punishment, nor will they be placed on probation. They will not have a criminal record for the offence.

Conditional Discharge - If the judge attaches conditions to the discharge, it is a conditional discharge. The judge orders a term of probation. Community service may be a condition. The Crown Prosecutor may apply to have the discharge revoked if the person does not complete the conditions.

Fine - The amount will vary with the seriousness of the crime and criminal record of the offender.

Suspended Sentence - A judge may suspend the sentence and place an offender on probation for a specified period of time. If the offender completes the probation successfully they will have a criminal record for the offence but will not be punished further. If they breach a term of probation they can be charged with breach of probation and also be brought back to court and given a fine or jail term for the original charge.

Conditional Sentence - A conditional sentence is served in the community instead of jail. This type of sentence is available for most offences that do not involve serious personal injury and do not carry a minimum term of imprisonment. It can be for any period of less than two years. There are certain terms that are a part of the sentence. Along with supervision, these terms will govern the offender in the community. A conditional sentence may appear to be similar to a probation order. However, if the conditions of the sentence are not met, the offender may face harsher consequences. Violations could result in the offender serving the rest of the sentence in jail.

Jail term - The length of any jail term ordered will vary with the seriousness of the offence and the previous criminal record of the offender. Where a judge orders a sentence of imprisonment for 90 days or less the judge may order that the person serve the sentence intermittently and set out certain time periods when the offender must be in jail. For example, the person may be allowed to serve their sentence only on weekends and holidays, allowing them to continue working, studying or looking after their family while serving a short sentence. When a person serving an intermittent sentence is out of jail, they are on probation.

More about Probation

Probation is a court order that may be imposed in addition to a fine or a jail term and must be imposed upon a conditional discharge or the granting of a suspended sentence. A probation order usually lists conditions that are intended to aid in the control or rehabilitation of an offender.

Conditions of a probation order may include...

• regular reporting to a probation officer
• abstaining from alcohol
• seeking treatment for an alcohol problem
• having limited or no contact with the victim
• attending counselling

If an offender does not follow all of the conditions of a probation order they could be charged with breaching a probation order. Breach of probation is a criminal offence.

Peace Bonds

If a person fears they may be harassed or abused in the future, and has good reason to believe so, they can get protection from the courts in the form of a peace bond. A peace bond is not a criminal conviction. It is a court order that requires another person to "keep the peace" for a certain amount of time and to obey any other conditions the court may add. As long as the conditions of the peace bond are met, the person will not be charged with a criminal offence. If the conditions of the peace bond are broken, however, the person may be charged and convicted of a criminal offence, be fined or jailed, and will then have a criminal record.

How to Get a Peace Bond

The complainant must make and sign a statement called an "Information" stating that they fear for their safety and stating the reasons why they are afraid. Generally, in rural areas the Information is sworn at the local RCMP detachment; in larger centres it is sworn at the Police Station or Crown Prosecutor's office. The defendant can then be required to appear in court on a certain date and time. On the court date, if the judge is satisfied that the complainant has reasonable grounds to fear for their safety or the safety of their family or property, the defendant will be asked to enter into a peace bond.

If the defendant agrees to the peace bond, the judge can grant the peace bond right away. The defendant must read and sign the peace bond.

By agreeing to sign a peace bond, the defendant agrees to certain conditions, such as to...

• keep the peace and stay out of trouble
• not harm or harass the complainant
• not see, phone, write, or send messages to the complainant

If the defendant will not agree to the conditions, or sign the peace bond, the judge will order a hearing. A hearing is like a trial. The judge listens to both parties. Then the judge decides whether to order the peace bond.

A Crown Prosecutor will conduct the case on behalf of the complainant. The defendant may be represented by a lawyer or may speak for themselves at the hearing. A peace bond can be ordered for the complainant's protection for a period of up to twelve months, if the judge decides that their fears are justified.

The complainant should keep a copy of the peace bond with them at all times. They should call the police right away if any of the conditions of the bond are broken.

Getting a Peace Bond

Monetary Compensation

Victims Services can award compensation to victims of violent crimes if they were committed within Saskatchewan. This includes compensation for victims of relationship violence. Compensation is not awarded for property crimes. The crime must have been reported to the police and the victim must be willing to testify in court.

The victim or dependents of the victim may apply for compensation. Certain other persons may apply on behalf of a person under the age of 18, a person of unsound mind, or a dependent adult. The application must be made within two years of the date of injury or death. If the crime is sexual assault or one of certain other specified sexual offences victims have up to two years after the incident is reported to the police to apply.

Compensation may be available for monetary loss resulting from injury, for example, if the victim is unable to go to work. Expenses for such things as medical bills, counselling, prescription drugs, eyeglasses, or clothing may also be available. For items that have had to be replaced, the victim should be prepared to provide receipts or other proof of expenses claimed. Compensation is not available for pain and suffering, legal fees, or property damage.

To apply for compensation, the victim fills out a Victims Compensation Program application form. This is available by contacting the Police, RCMP or Saskatchewan Justice online at www.justice.gov.sk.ca/VS-compensation.

The Victims of Domestic Violence Act

Saskatchewan has a law that provides additional ways to help fight domestic violence. The law covers women and men who suffer violence from their live-in partners, whether they are married, living common law, or in a same-sex relationship. It applies to parents of children whether they have ever lived together or not. The law also protects children and seniors living in a family relationship.

Domestic violence includes physical harm and damage to property, forced confinement, and sexual assault. A threat that causes a reasonable fear of physical harm or damage to property is also domestic violence.

The law creates three ways to deal with domestic violence. These are: emergency intervention orders; victim's assistance orders; and warrants of entry.

Emergency Intervention Order

This order gives relief to a victim in an emergency. A victim of domestic violence may ask for an emergency intervention order for...

• exclusive occupation of the home
• a police officer to remove the abuser from the home
• a police officer to supervise while the abuser or the abused person takes personal belongings from the home
• a restraining order saying that the abuser may not contact the victim

Special Justices of the Peace are available at any hour to hear an application for an order. Police officers, mobile crisis workers, and victim services coordinators can help victims apply for an order. Before making an order, the Justice of the Peace must determine that domestic violence has occurred. The Justice of the Peace must also be satisfied that the case is serious or urgent enough that it should not wait for a judge to hear it. A Justice of the Peace may give an order without the person who committed the violence being present.

After a Justice of the Peace makes an emergency intervention order, the abuser must be given notice of it. The order does not take effect against that person until they receive notice.

Because emergency intervention orders are designed for an emergency, they must be confirmed afterwards by a judge. The judge must look over the order and the supporting papers within three working days of getting the documents from the Justice of the Peace. If the judge is not satisfied that there was evidence for the order, the judge can schedule a rehearing of the matter.

A person against whom an emergency order is made may ask a judge to review the order at any time.

Victim's Assistance Order

A victim's assistance order is similar to an emergency intervention order, but is designed to be used in non-emergency situations. This type of application is made to a judge who may make any of the orders available as emergency intervention orders. Other orders are available too. For example, the judge may order the abuser to pay compensation because the victim has suffered a loss of money as a result of the abuse. Compensation can be for things such as loss of earnings, medical and dental expenses, out-of-pocket losses, moving expenses, or legal expenses.

Warrant of Entry

Warrants of entry are designed to be used where there is concern about a person who cannot act on their own. A Justice of the Peace may order that a police officer be allowed to enter and search a place. The order may be made only after the potential abuser has refused to give the police officer access to a person who may be a victim of domestic violence. It gives the holder of the warrant the right to go into the home. They may assist or examine the possible victim and may remove the victim from the home, if necessary.

Family Law

The family law system deals with, among other things, private disputes between people in family relationships. Spouses or partners can try to settle matters themselves by agreement. If the parties cannot come to an agreement on their own, a mediator may be able to help them reach an agreement. Some people choose to use a collaborative approach where the parties and their lawyers all work together to find a solution that works for everybody. Alternatively the parties can hire separate lawyers and try to settle the matter through negotiation. Failing that, the parties can go to court and have the matter settled by a judge. It is important for victims of domestic violence to be aware of power imbalances and choose an option that will best protect their interests and help them to find their voice.

Some family law remedies, such as spousal support and the division of property, are only available to spouses. Under the law "spouses" include married couples and common-law couples who have lived together for two years or more, including same-sex couples. The parents of a child are also considered spouses, by law, even if they have lived together for less than two years, if they have lived together in a relationship of some permanence.

The family law system deals with matters such as...

• restraining orders
• separation
• divorce
• child custody
• child support
• division of property
• exclusive possession of the family home

Restraining Orders

Family law can be used to get protection similar to that provided by a peace bond. It is called a restraining order.

A court can issue a restraining order that places limitations on how a person can contact their spouse or partner. The court may grant a restraining order if it is satisfied that someone's safety is threatened. It may forbid an abuser from approaching their spouse or partner in any way, either directly or indirectly.

Once a restraining order is in place, the police can enforce it. If the abuser does not obey the order, they can be fined or put in jail.

Property

Getting Back into the House

A spouse can apply for an order for exclusive possession of the family home. If granted, the order will allow a spouse peaceful possession of the family home without interference from the abuser.

Such an order directs the abuser to vacate the home for a specified period of time. The court may also further restrain them from entering or visiting the home if their spouse requests it. They may also be ordered to pay the rent or mortgage. Right of ownership may be suspended, preventing the sale of the family home.

The court will always try to take into account the interests of the children and will try to place them in a situation that is as close to normal as possible. Other factors considered by the court are the availability of other accommodation and the financial situation of both spouses.

The spouse should keep a copy of any court order with them if they want the police to enforce it. The police must be able to examine the order to determine whether it has been violated.

If a victim invites their spouse onto the premises, they may be responsible for the order being breached and the police will be hesitant to enforce it. As well, a court can vary the order if satisfied that there has been a material change in circumstances.

Personal Belongings

If an abused spouse does not want to apply for an exclusive possession order or remain in the family home, they will likely want to return to the house briefly to get their own personal belongings. This may not be a problem if their spouse consents. However, without that permission they may wish to consult a lawyer and make an application to the courts to allow and facilitate entry (see the information under the section titled The Victims of Domestic Violence Act).

Division of Property

Under The Family Property Act, when spouses separate, the court starts with the assumption that each spouse has an equal share in the family assets and that the property will be divided equally. However exemptions may apply to some property such as...

• property owned by either spouse before they became spouses
• property given to or inherited by either spouse before they became spouses
• property obtained by either spouse after the spousal relationship ends

There are special rules that apply to a family home. Saskatchewan law directs the courts to equally divide the family home except where it would be unfair because of an unusual situation or unfair to a parent who has custody of the children.

For couples that are not legally recognized as spouses, there is no right to each other's property, unless they can prove that they have an interest in it. For example, if one partner is the sole owner of the common residence, the other partner would have to prove an interest by showing such things as having...

• paid for part of the purchase price, or contributed to the purchase in some other manner
• contributed to the improvement of the property

This sort of claim is called a trust action.

Disposing of Assets

If a person thinks their spouse will sell or give away some of the family property, they can apply to the court, through their lawyer, for a restraining order which will prohibit the spouse from doing so. If a spouse has already sold or given away some of the property, the court may order that it be returned for division or consider its value when dividing the remaining property.

Children

Custody Orders or Custody Agreements Are Important

Both parents have the right to raise and care for their children. If they are living together, they share this responsibility. When parents separate the children have to be shared in some way. The parents might agree how this is to be done. They can sign a written agreement that determines custody and access. The parents can agree to share custody or decide that one parent will have custody and the other parent will have access. If they can't agree, the court can be asked to decide for them. The court can make a custody order that will specify who the children are to live with and when the other parent can visit them.

Parents should have a written custody agreement or a custody order. If one parent does not honour the agreement or order, the other parent can go to court and get help from the police. The court can make a number of orders that can help facilitate custody or access. The court can order the police to enforce the custody order or agreement. If a person willfully resists or disobeys any court order, they can be fined or sent to jail.

Deciding Custody

Custody is determined on the basis of what the court thinks would be in the best interest of the children. The court looks at such things as...

• a child's relationship with both parents
• which parent is best suited to have custody
• any special needs of the child and which parent can best deal with those needs
• long-term plans of each parent for the care and education of the child
• the wishes of the child, depending on the child's maturity

The assistance of a lawyer is generally needed to make an application for custody. Although it can take some time to get a final order, a court will usually grant an interim custody order which gives one parent temporary custody until the matter is finally resolved. An interim order may also be obtained for other matters, such as access.

When a court decides to give one parent sole custody it usually gives visiting rights to the other parent. The court will refer to this as "access." The court is of the view that it is the right of every child to see and associate with both parents. Access rights are denied only in exceptional circumstances, such as where it would likely cause the child physical or emotional harm.

Leaving Children Behind at the Time of Crisis

A parent will not lose parental rights by leaving children behind at a point of crisis, but it is essential to contact a lawyer and receive legal advice about custody and access without delay. The best interests of the children will be the guiding principle considered by courts in determining these matters.

Support Payments

Getting financial assistance through the courts can be a very complicated area of family law and may require a lawyer.

Child Support

In almost all cases, the court will order the parent who does not have custody to help support the children.

Child support orders are based on the Federal Child Support Guidelines. Saskatchewan has adopted these guidelines. The Guidelines set out a fixed amount of support per child depending on the paying parent's income. The amount can be varied if there are special expenses for a child, such as health care, child care, education, or extracurricular activities. It can also be reduced if paying that level of child support would cause undue hardship.

Spousal Support

In addition to child support payments, a spouse may be ordered to help support their spouse.

When deciding whether a spousal support order is appropriate, and if so, determining the amount, the court will consider factors such as...

• the means, needs, and other circumstances of the spouse
• how long the spouses have lived together
• what role each spouse had in running the household
• any court order or agreement regarding maintenance of the spouse or children
• the effect the spousal relationship or its breakdown has had on each spouse's financial position
• the ability of each spouse to be able to support himself or herself

In deciding on spousal maintenance, the court does not consider any misconduct of the spouses in relation to the spousal relationship, such as cruelty or adultery, unless it has impacted the other spouse financially.

Separation

Spouses and partners can leave a relationship whenever they want - there is no legal process that is required for a couple to separate. Once a couple has begun living separate and apart they will be considered "separated."

When a couple separates it may be by mutual consent. The couple may want to resolve the problems that come with the break-up of the relationship. This can be done by oral or written agreement. The terms could include how their property will be divided, how much maintenance will be paid to whom, and who will have custody of the children. An agreement to divide property must be in writing and both spouses must get independent legal advice.

Written separation agreements are useful for tax purposes and provide a guideline as to what is expected of each party. But if one of the parties does not honour the agreement, the other must take them to court and sue as they would with a contract. The only exception to this is if one of the parties does not follow the agreement as it relates to custody or access (see the section titled Children).

Legal advice is particularly important in abusive relationships where the parties may not have equal bargaining power. It is important that both parties understand what they are signing and the alternatives that are open to them.

Ending a Marriage

Divorce is the ending of a legal marriage. It leaves the parties free to marry again. Divorce proceedings can sometimes be very complicated, especially if the divorce is contested or if the parties cannot come to an agreement over matters of child and spousal support, or custody of the children. It is a good idea for people considering divorce to consult a lawyer about handling their case.

Grounds for Divorce

A divorce can only be granted by a court order. A court may grant a divorce if there is a breakdown of the marriage. Marriage breakdown can be established when...

• the parties have lived apart from each other for one year
• one of the parties has committed adultery (had sexual intercourse with someone else) and has not been forgiven by the other party
• one of the parties has subjected the other to cruel treatment, including physical and mental abuse, of such a nature that it is intolerable to continue to live with him or her (see the section titled The Behaviour).

Either party can begin formal divorce proceedings when the parties no longer live together as a couple. Although divorce proceedings can begin as soon as the couple stops living together, generally the divorce will not be finalized until they have lived separate and apart for a period of one year. In the case where adultery or cruelty is established, the divorce may be finalized sooner.

A brief attempt at reconciliation or getting back together during the year will not prevent the couple from divorcing if the reconciliation is unsuccessful. If the couple wants to try to mend their relationship, they can live together for a period of up to 90 days without affecting their divorce action.

A divorce may be granted together with an order dealing with custody, access, maintenance, and division of property. When the divorce is granted, the court will issue a judgment for divorce. The divorce becomes final 31 days after the judgment is issued. The purpose of the waiting period is to allow time for either party to appeal the judgment.

Ending Other Spousal Relationships

Other than living separate and apart, unmarried spouses do not need to go through any legal procedure to end their relationship. Unmarried spouses generally have 24 months after they separate to claim an interest or benefit stemming from that relationship. Individuals leaving common law relationships should check the specific legislation or benefit program to determine the time frame within which claims must be made.

Finding a Lawyer

An individual searching for a lawyer will often ask friends to recommend one. Another method often used is to make a few phone calls to firms listed in the yellow pages, inquiring whether they are experienced in family law and what their fees are. Many lawyers offer free initial consultations.

Legal Aid lawyers are available to act for eligible people who cannot afford to hire a lawyer and who need assistance in the areas of criminal law and family law. Individuals will generally be eligible if...

• they are receiving Social Assistance
• they are earning incomes that are not above the Social Assistance level
• legal costs are so great that their income would be reduced to the Social Assistance level

To contact Legal Aid, look under the Government of Saskatchewan blue pages in your telephone directory or in the yellow pages under "Lawyers."

Family law can be very complicated, especially in matters of property, custody and divorce. Individuals leaving an abusive relationship may be particularly vulnerable. A lawyer can help individuals to better understand their rights and the legal options that are available.

More Information

Interpersonal Violence and Abuse Programs

Government of Saskatchewan
600-1874 Scarth Street
Regina SK S4P 4B3   

Phone: (306) 787-5096
www.justice.gov.sk.ca/IVAP

Provides support to victims of violence and information about family violence and available programming throughout the province.

Aboriginal Family Violence Programs

Toll Free: 1-888-286-6664
www.justice.gov.sk.ca/Aboriginal-Family-Violence-Programs

The Ministry of Justice and Attorney General supports a number of community-based programs that help Aboriginal families living in urban areas deal with abuse and violence.

National Clearinghouse on Family Violence

Public Health Agency of Canada
Address Locator: 1909D1
200 Eglantine Driveway
Ottawa ON K1A 0K9   

Toll Free: 1-800-267-1291
www.phac-aspc.gc.ca/ncfv-cnivf/index-eng.php

Provides information about family violence, including a referral and directory service, fact sheets, research findings, statistics and much more.

Provincial Association of Transition Houses (PATHS)

1940 McIntyre Street
Regina SK S4P 2R3   

Phone: (306) 522-3515
www.abusehelplines.org/

PATHS is a non-profit organization that provides services to abused women and children, including fact sheets, pamphlets, posters, and resource materials.   

STOPS to Violence

Box 4481
Regina SK S4P 3W7   

Phone: (306) 565-3199
www.stopstoviolence.com

Provincial organization dedicated to supporting partnerships with individuals, communities, organizations, and governments to address issues of personal and relationship violence.

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ISBN/ISSN number: 978-1-926545-28-8