Domestic violence is a deeply troubling issue that affects many families across Canada. It not only causes physical harm but also leaves emotional and psychological scars that can last a lifetime. The legal system in Canada offers various protections for victims of domestic violence, including the ability to obtain protection orders (also known as restraining orders or emergency orders) to ensure their safety. This blog will explore the legal framework surrounding domestic violence in Canada, the process of obtaining protection orders, and the broader implications of these orders in the context of family law.

Understanding Domestic Violence in Canada

Domestic violence, often referred to as intimate partner violence (IPV), encompasses a range of abusive behaviors that occur within a domestic setting. These behaviors can include:

 

• • Physical Abuse: Acts of violence such as hitting, slapping, choking, or using weapons.

• • Emotional and Psychological Abuse: Manipulation, intimidation, threats, and verbal abuse aimed at undermining the victim’s self-esteem and mental well-being.

• • Sexual Abuse: Non-consensual sexual acts, coercion, and any form of sexual violence.

• • Financial Abuse: Controlling the victim’s access to economic resources, withholding money, or preventing the victim from working.

• • Stalking and Harassment: Persistent unwanted attention, monitoring, or following the victim.

Domestic violence is not limited to intimate partners; it can also occur between other family members, such as parents and children, siblings, or extended relatives. The impacts of domestic violence are profound, affecting not only the immediate victims but also any children or other family members who may witness the abuse.

Legal Framework for Addressing Domestic Violence in Canada

Canada has a robust legal framework to address domestic violence, with both federal and provincial/territorial laws protecting victims. The Criminal Code of Canada addresses criminal acts related to domestic violence, such as assault, sexual assault, uttering threats, and criminal harassment. In addition to criminal law, family law is crucial in protecting victims through civil remedies like protection orders.

Protection Orders in Canada

Protection orders are a critical legal tool used to prevent further abuse and protect victims of domestic violence. A court issues these orders and places specific restrictions on the abuser’s behavior, with the primary goal of ensuring the safety of the victim and any children involved. The types of protection orders available in Canada vary by province and territory, but they generally fall into the following categories:

 

1. 1. Emergency Protection Orders (EPOs):
      

       

      • • Emergency Protection Orders (EPOs) are short-term orders granted in urgent situations where immediate protection is required. They can often be obtained quickly, sometimes without the abuser being present (ex parte). EPOs typically last for a short duration, such as a few days or weeks, until a more permanent order can be sought.

1. 1. Restraining Orders:
      

       

      • • Restraining orders are broader orders that can be obtained in family law proceedings. They prohibit the abuser from contacting or approaching the victim and may include additional conditions, such as requiring the abuser to stay away from the victim’s home, workplace, or children’s school. Restraining orders can be temporary or permanent, depending on the circumstances.

1. 1. Peace Bonds:
      

       

      • • A peace bond is a type of court order that requires the abuser to keep the peace and behave well. It may include conditions similar to those in a restraining order. Peace bonds are often used when there is a fear of future violence, even if no criminal charges have been laid.

1. 1. No-Contact Orders:
      

       

      • • No-contact orders are typically issued as part of criminal proceedings and prohibit the abuser from contacting the victim. These orders are often included as a condition of bail or probation and are enforceable by criminal law.

Process of Obtaining a Protection Order

The process for obtaining a protection order varies depending on the type of order and the jurisdiction, but the general steps are as follows:

 

1. 1. Filing an Application:
      

       

      • • The victim, or someone on their behalf, files an application with the court for a protection order. This application should include details of the abuse, any evidence supporting the claims (such as police reports or witness statements), and the specific protections being sought.

1. 1. Court Hearing:
      

       

      • • The court will often hold a hearing to consider the application. The abuser (respondent) may be notified of the hearing and allowed to respond, though, in urgent situations, the court may grant an order without the respondent’s presence (ex parte). The judge will assess the evidence and determine whether to issue the order and what conditions to include.

1. 1. Issuance of the Order:
      

       

      • • If the judge grants the protection order, it will be issued with specific conditions tailored to the circumstances. The order is legally binding, and any violation can result in criminal charges against the abuser.

1. 1. Enforcement:
      

       

      • • Once a protection order is issued, it must be enforced. Victims should always keep a copy of the order with them and notify local law enforcement of its existence. Police enforce protection orders, and violations can lead to arrest and criminal prosecution.

Legal Considerations and Challenges

While protection orders are a critical tool in safeguarding victims, several legal considerations and challenges may arise:

 

• • Burden of Proof: The victim must provide sufficient evidence to convince the court that a protection order is necessary. This can be challenging if the abuse is primarily emotional or psychological, as these forms of abuse may leave less tangible evidence.

• • Enforcement Issues: Although protection orders are legally binding, enforcement can sometimes be inconsistent. Police may prioritize cases based on the perceived severity of the threat, and there can be delays in responding to violations, leaving victims vulnerable.

• • Retaliation by the Abuser: In some cases, obtaining a protection order can escalate the situation, leading to retaliation by the abuser. It is essential for victims to have a safety plan in place and to seek support from professionals and community resources.

• • Impact on Custody and Access: In family law cases, protection orders can significantly affect custody and access arrangements. Courts must balance the need to protect the victim with the child’s right to maintain a relationship with both parents. In cases where domestic violence is a factor, supervised access or restricted visitation may be ordered to ensure the child’s safety.

The Broader Implications of Domestic Violence in Family Law

Domestic violence has far-reaching implications in family law, particularly in matters involving custody, access, and spousal support. Canadian courts are increasingly recognizing the need to address domestic violence as a critical factor in determining the best interests of the child and in making fair and just decisions in family law disputes.

Custody and Access

In cases where domestic violence is present, the safety of the victim and the child is the court’s paramount concern. Section 16 of the Divorce Act requires courts to consider the impact of family violence on the child’s safety, security, and well-being when making custody and access decisions. Courts may order supervised visitation, impose conditions on access, or, in severe cases, deny access to the abusive parent altogether.

Spousal Support

Domestic violence can also affect spousal support determinations. Under the Spousal Support Advisory Guidelines(SSAG), courts consider the length of the relationship, the roles of each spouse during the marriage, and the financial impact of the separation. If domestic violence has led to economic hardship for the victim, this may be a factor in determining the amount and duration of spousal support.

Division of Property

The division of property can also be influenced by domestic violence. While the division of assets is generally based on equalization under provincial family law statutes, courts may consider the impact of domestic violence when determining whether an unequal division is warranted.

Support and Resources for Victims of Domestic Violence

Victims of domestic violence in Canada have access to a wide range of support services and resources. These include:

 

• • Shelters and Transition Houses: Safe housing for victims and their children, often with access to counseling, legal assistance, and other support services.

• • Crisis Hotlines: 24/7 phone lines that provide immediate assistance, information, and referrals to local resources.

• • Legal Aid: Free or low-cost legal services for victims who cannot afford to hire a lawyer. Legal aid may cover family law matters, including protection orders, custody, and divorce.

• • Counseling and Therapy: Professional counseling services to help victims and their children cope with the emotional and psychological effects of domestic violence.

• • Support Groups: Peer support groups provide a safe space for victims to share their experiences and receive support from others who have been through similar situations.

Conclusion

Domestic violence is a complex and deeply concerning issue that requires a comprehensive legal and social response. In Canada, the legal system provides a range of protections for victims, including the ability to obtain protection orders to ensure their safety. However, navigating the legal process can be challenging, and victims must be supported with appropriate resources and services.

The implications of domestic violence extend beyond immediate safety concerns, affecting family law decisions related to custody, access, spousal support, and property division. Courts must carefully consider the impact of domestic violence on all aspects of family law to ensure that justice is served and that the best interests of the child are upheld.

For victims of domestic violence, it is essential to seek legal advice and support as soon as possible. By understanding their rights and the legal remedies available, victims can take steps to protect themselves and their children and work towards a safer and more secure future.