People leaving an abusive relationship face unique challenges when trying to resolve family law issues. Fair negotiations to reach an agreement may not be possible when there has been abuse. Abuse may also impact issues such as spousal support and parenting. There are some particular family law orders that may help individuals dealing with an abusive situation.
Complete information about divorce, separation, parenting, child support, spousal support and family property can be found on Family Law Saskatchewan.
Negotiating an agreement when there has been abuse can be difficult. A person who has suffered abuse may find it very difficult to be in the same room with the abuser and they may not have equal bargaining power. Abusers often have considerable power and control over their victims. It can be very hard for fair negotiation to take place.
There are however options for negotiation where the parties do not have to be in the same room and other supports for victims of abuse that can make negotiation of an agreement possible. When there has been abuse it is very important that victims not sign anything without getting legal advice from their own lawyer and support they need throughout the process.
Although spousal misconduct itself is not a factor to be considered when deciding whether to order spousal support or the amount, it will be relevant if it has affected the abused spouse’s ability to, for example, earn an income. This is outlined in the Supreme Court of Canada case, Leskun v. Leskun, as follows...
There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. … If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.
Violence between parents, even though it is not directed at the children, impacts the children. People who are violent towards the other parent may be more likely to harm their child. Babies are at risk for being dropped or accidentally injured during violent episodes. A violent parent may use the child to intimidate or control the other parent and may even in some serious cases abduct or harm the child. A parent who experiences family violence may suffer from low self-esteem and depression.
Children who witness violence between their parents are often terrified by it and do not understand what is happening. A child that is directly or indirectly exposed to family violence has experienced family violence. Even children who do not witness the violence are affected by living in a home where it is present. Children who live in homes where there is violence may have behavioural problems and low self-esteem and may be at risk to be violent or be victimized by violence in their relationships later in life.
The law recognizes the impacts of family violence. If there is family violence it must be considered whenever a parenting order is being made. Courts must consider any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. See Best Interests of the Child for detailed information about the factors the court will consider when deciding on the best interests of a child and the specific factors that must be considered when there is family violence.
If a parent is concerned about a child’s safety they may wish to request that the other parent’s time with the child be supervised. If parents are not likely to be able to safely facilitate access directly because of violence or hostility issues between themselves, supervised exchanges may be an option.
Under Saskatchewan law married couples and couples who have lived together as spouses for two years or more have family property rights. They can ask the court for exclusive possession of the family home. This allows one spouse to stay in the home.
When deciding whether to make this order, courts will consider things like the conduct of the spouses towards each other and what is best for any children. Exclusive possession orders can be for a set period of time or for an unspecified length of time. The order can be changed if the circumstances change.
It takes time to go to court and get this kind of order. If you need immediate possession see the information on The Victims of Interpersonal Violence Act.