Violence and Family Law
Changes to the federal Divorce Act addressing family violence came into effect March 1, 2021. For the purposes of the Divorce Act, family violence is broadly defined to include any conduct by a family member towards another family member that is violent, threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their safety. In the case of a child, the direct or indirect exposure to such conduct is also included. The definition also includes a non-exhaustive list of examples of conduct that constitute family violence.
Manitoba has new provincial family law legislation, The Family Law Act, which came into effect July 1, 2023. The Family Law Act includes comparable provisions as the Divorce Act with respect to addressing family violence. The definition of family violence and its relevance as a factor to be considered in determining the best interests of a child is the same in Manitoba’s legislation as in the Divorce Act.
Can intimate partner violence influence how agreements are made?
Family law allows parties to come to agreements about their separation that can be signed and become enforceable. However, negotiating a separation agreement when there is intimate partner violence can be extremely difficult for victims.
An (ex) spouse or partner who experienced violence may find it very difficult to be in the same room as the person who used violence against them. They may become timid or not voice their interests. They will not have equal bargaining power. The partner who used violence may use the negotiation or mediation process to continue to exert control.
Who can help victims of intimate partner violence negotiate a fair agreement?
When safety planning takes place, a trauma informed negotiation and mediation process can be safe for those who have experienced violence and assist them to resolve their family law issues quickly and consciously with assistance. There are experienced family law lawyers who can assist with negotiations.
Additionally, there are shuttle mediation services available if abuse is disclosed or noticed by mediators. Shuttle mediation ensures that the parties are in different rooms and the mediator “shuttles” between them to assist in coming to an agreement.
Do courts need to consider Protection Orders in requests for child or spousal support?
One of the amendments to the Divorce Act provides that where there is a request for corollary relief related to parenting issues or a support order, a court will have to consider if there are any civil or criminal court Protection Orders in place, or proceedings in relation to such an order, between the parties or a child protection order or proceeding.
This provision is also found in Manitoba’s new family law legislation. The Family Law Act contains similar provisions that require a court to consider in a proceeding under the provincial Act whether there are any such civil or criminal court Protection Orders, or proceedings relating to such an order, between the parties or a child protection order or proceeding.
These provisions in both federal Divorce Act and Manitoba’s Family Law Act are meant to facilitate the identification of existing orders and similar proceedings that might conflict with an order made under the same applicable federal or provincial legislation, as the case my be, and to facilitate the coordination of multiple proceedings between the same parties in different courts.
Do courts need to consider family violence when making orders related to parenting?
The amendments to the Divorce Act and the comparable provisions in The Family Law Act include a non-exhaustive list of criteria addressing best interests of the child that a court must consider when making an order related to parenting issues. One of the criteria that a court must consider is the presence of any family violence and its impact on the ability and willingness of any person engaged in the family violence to care for and meet the needs of the child.
In general, does the court process look different if someone is experiencing intimate partner violence?
Family law judges cannot make decisions about family violence and how it effects the “best interest of the child” until it is disclosed to them through evidence. This evidence includes affidavits from victims, affidavits from witnesses, letters from victim services, medical documents that can be accessed using (The Personal Health Information Act) PHIA, records from third parties including, Police, Child and Family Services, Winnipeg Child Access Agency or any other third parties involved and expert reports that rely on this information.
Family Court Judges at the Court of King’s Bench can provide rulings on many issues that effect both victims and users of violence in family violence cases. These decisions include but are not limited to:
- providing exclusive occupation of the family home to one of the parties;
- parenting time decisions relating to the children;
- supervised or limited periods of parenting time to one parent due to violence that effects the children, and
- limiting or prohibiting communication and contact between spouses or common-law partners and other types of protective relief.
Family Court Judges can also grant Prevention Orders under The Domestic Violence and Stalking Act, and hear applications of Respondent to set aside or vary a Protection Order granted by a Judicial Justice of the Peace if there are other family law matters that need to be resolved.
To enter into the court process legal advice is recommended. For women who are leaving relationships where they have experienced family violence, A Woman’s Place will provide a free legal consultation to ensure that they are not prevented from accessing legal advice in a confidential and no obligation scenario from a lawyer due to the financial control or constraints they experience from their partner or ex-partner.
For more information on Court Process, please review Court System and Procedure section.