When a relationship ends due to domestic violence, the legal issues that follow—such as protecting your safety, staying in your home, and establishing arrangements for your children—become urgent. It is vital to seek legal remedies that are specific to the Ontario legal framework. This guide outlines key protective measures available under Canadian family law, with a focus on legislation in the Province of Ontario.
Understanding “Family Violence” in Canadian Law
In Canadian law, particularly under the amended Divorce Act, the term family violence is used and defined broadly to encompass a range of conduct, not just physical assault.
The Divorce Act defines family violence as any conduct, whether or not it is a criminal offence, by a family member towards another family member that is violent or threatening, or that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or that of another person.
This includes, but is not limited to:
- Physical and sexual abuse.
- Threats to kill or cause bodily harm.
- Harassment, including stalking.
- Psychological and emotional abuse.
- Financial abuse.
- Threats to harm an animal or property.
The courts take family violence seriously, and this definition applies to all parties seeking divorce. Provincial and territorial legislation, such as the Ontario Family Law Act (FLA), provides corresponding protection for those who were not legally married. Section 46 of the FLA governs these orders.
Section 1: Seeking Immediate Protection with a Restraining Order
If you have reasonable grounds to fear for your safety or the safety of your child, you can apply to the family court for a Restraining Order under provincial legislation like the Ontario Family Law Act (FLA). There is a stringent legal test outlined in the Act which must be met.
What is a Family Law Restraining Order?
A Restraining Order is a civil court order issued by a family court judge that places conditions on the restrained person’s behaviour to ensure your safety. These orders typically include:
- No-Contact: Prohibiting all direct and indirect communication with you and/or your children.
- Stay-Away: Prohibiting the restrained person from coming within a specified distance (e.g., 100 or 500 metres) of your home, workplace, or the children’s school.
Family Law vs. Criminal Court Orders
It is important to understand the distinction:
- Family Court Restraining Order (e.g., under the FLA): This is a civil remedy sought in family court.
- Criminal Court Orders: These include Recognizance of Bail (conditions imposed after an arrest) or a Peace Bond (a Section 810 Order under the Criminal Code). Breach of either a Family Court Restraining Order or a Criminal Court Order is itself a criminal offence that can lead to an arrest.
In Ontario, applications for a Restraining Order can be filed in either the Superior Court of Justice or the Ontario Court of Justice. Given the urgent nature of safety issues, courts can often hear these motions quickly, and sometimes even without notice to the other party (known as an ex parte order), although such orders are typically short-term and reviewed shortly after.
Section 2: The Family Home and Safety
A priority for many individuals leaving an abusive situation is securing their right to remain safely in the family home. For married spouses in Ontario, this remedy is known as an Order for Exclusive Possession of the Matrimonial Home.
Exclusive Possession of the Matrimonial Home
Under the Ontario Family Law Act, a matrimonial home is any property that was ordinarily occupied by the spouses as their family residence at the time of separation. Both spouses have an equal right to possession, regardless of whose name is on the title.
An order for Exclusive Possession is a powerful, often interim, remedy that grants one spouse the exclusive right to live in the home, to the exclusion of the other spouse, even if the excluded spouse holds sole ownership.
When considering such an order, the court must weigh several factors, with safety being a key consideration. The court will specifically look at any violence committed by a spouse against the other spouse or the children when deciding who should remain in the home. This order provides immediate stability and safety while the parties determine the ultimate division of property.
Note: For common-law partners in Canada, the right to Exclusive Possession is not automatically granted under the FLA in the same way. Their claim to possession is often based on ownership or other property law principles, making the Restraining Order the primary tool for removing a partner in a safety situation.
Section 3: Protecting Children and Parenting Arrangements
Family violence has a significant impact on decisions concerning children. The 2021 amendments to the Divorce Act fundamentally changed how Canadian courts approach parenting time (formerly custody and access) and decision-making responsibility (formerly sole or joint custody).
The Best Interests of the Child Test
The paramount consideration in all parenting decisions remains the best interests of the child. However, the amendments mandate that the court must consider any family violence and its impact when applying this test.
Specifically, the court must consider:
- The nature, seriousness, and frequency of the family violence.
- Any compromise to the safety of the child or other family member.
- The ability and willingness of any person who engaged in family violence to care for and meet the needs of the child.
- The appropriateness of making an order that would require cooperation on issues affecting the child (as cooperation is often impossible and dangerous in a high-conflict or abusive dynamic).
This focus ensures that family violence is not minimized and that the arrangements prioritize the child’s physical and psychological safety. It is not always in the child’s best interest to maintain close or cooperative contact with a parent who has engaged in family violence. The court may impose restrictions, supervised parenting time, or third-party exchanges to ensure safety.
Conclusion: Do Not Navigate This Alone
If you or your children are experiencing family violence, your immediate safety is the first priority. Please reach out to your local emergency services (911) if you are in immediate danger.
The legal system offers specific, robust, and distinctly Canadian remedies to secure your protection and address family law matters like parenting and property. Seeking a Restraining Order or Exclusive Possession of the Matrimonial Home requires accurate legal knowledge and evidence. It is crucial to consult with a Canadian family lawyer who is experienced in navigating these provincial and federal statutes.
