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Domestic Violence and Divorce Settlements

How Can Domestic Violence Affect Rights to the Family Home?

Domestic violence is a serious matter in Ontario family law and the Canadian Criminal Code. In addition to the impact domestic violence allegations can have on child custody and spousal support, the court may grant one spouse exclusive possession of the matrimonial home if the other spouse has committed violence or made threats of violence in the home.

Domestic violence occurs when a person abuses someone in their family, whether a child or an adult. It can be words, acts, or not giving someone the care they need. It may be a single incident or a recurring pattern of behaviour. Domestic violence can happen before, during, or after a couple separates. People are often at higher risk of family violence soon after a separation.

Under the new Divorce Act in Canada, family violence is any behaviour that is

  • violent, or
  • threatening, or
  • a pattern of coercive and controlling behaviour, or
  • behaviour that causes a family member to fear for their safety or the safety of another person

While many types of abuse are criminal offences, some non-criminal behaviours are still considered family violence under the Divorce Act. Our highest priority will always be your current safety.

Even when allegations of domestic violence are untrue, the situation must be carefully handled to reach a fair divorce settlement. The stakes are too high to take a different approach.

Domestic violence is a very real threat in many people’s lives, and allegations of home violence should always be taken seriously.

In some cases, families may become involved with different courts at the same time, such as in cases of family violence when the criminal justice system, the child protection system, and the family justice system may all be involved. These situations can be challenging, especially if one court does not know about a no-contact order between parents.

To navigate these challenges, the new Divorce Act states that judges must consider whether there are any current or pending civil protection, child protection, or criminal proceedings or orders related to the divorcing couple. It is the responsibility of the parent to tell the court about any orders involving your or your former spouse or any restraining or protection orders against either of you. An experienced divorce lawyer can help navigate these challenges and ensure that all proceedings are conducted according to Canadian law.

Domestic violence is a very real threat in many people’s lives, and allegations of home violence should always be taken seriously. However, in some cases, one spouse will use a false allegation of abuse to gain an advantage over the other spouse. This untoward tactic is sometimes used to get one spouse out of the home with a court order that gives the other spouse exclusive possession of the home.

Before a court grants an exclusive possession order, the court will consider several factors:

  • The safety of the spouses and any children in the home
  • The best interests of the children
  • The financial circumstances of each spouse
  • Whether the spouses have access to other living arrangements
  • Whether there is any need to sell the property

With more than 20 years of experience, family lawyer Elliot S. Birnhoim represents clients who are seeking or defending against an exclusive possession order. He is committed to ensuring justice is reached for the abusive spouse so that you and your children can remain safe. Learn more about protecting your family and assets from a violent spouse by arranging a free consultation using our online contact form.

For more about protecting your assets in a divorce, please see our previous post, “Things you should know about exclusive possession orders in Ontario.”

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