Domestic Violence Cases in Family Law
Domestic violence is a pervasive issue that profoundly affects family law cases. Lawyers dealing with such cases must be equipped not only with a deep knowledge of the law but also an understanding of the unique dynamics and challenges surrounding domestic violence. The possible recourses in a domestic violence case are the following:
Exclusive Possession of Matrimonial Home
One of the possible courses of action that your client might want to consider is seeking an order for exclusive possession of the matrimonial home. However, this relief is only available if the parties are married. Lawyers should clearly identify the fact of domestic violence in the application and discuss this option with their clients.
Restraining Order: A crucial Protection Measure
In many cases of domestic violence, a restraining order becomes necessary. This order is crucial to protect not just the primary victim but also the children from the abuser. Even if the victim is granted an order for exclusive possession of the home, a restraining order will be necessary to ensure their safety when they are away from their home.
Navigating Parenting Orders
Changes in the language of federal and provincial legislation mean that the terms "custody" and "access" are being phased out, replaced by "parenting orders," which will set out “parenting time” and “decision-making responsibility.”
Lawyers need to understand that in cases involving domestic violence, the dynamics are different. Joint custody or decision-making is usually not feasible, as it requires a level of cooperation and respect that is often absent in these situations.
The Impact of Domestic Violence on Spousal Support
Domestic violence can significantly impact the issue of spousal support. If the abuse has left the victim emotionally and/or physically traumatized to such a degree that the victim’s ability to work is compromised, that should be set out in the application. This could be a relevant factor when determining the issue of support, including the quantum of support.
In conclusion, handling domestic violence cases in family law requires a delicate balance of empathy, understanding, and legal expertise. By understanding the dynamics of abuse and working sensitively with victims, lawyers can make a difference, steering victims toward safety, justice, and a brighter future.
Emergency Motions
Given the urgent nature of domestic violence cases, victims often need immediate relief from the court. A restraining order may be necessary to ensure their safety, and if there's a risk that the abuser may abduct the children, a non-removal order may be required. If the victim has left with the children, an interim custody order may be needed. In case of financial dependency on the abusive spouse, support will be crucial.
It's important to note that delays in court proceedings can be dangerous in abuse situations, leading to serious hardship for victims. Courts recognize this and grant leave to hear emergency motions in cases of urgency or hardship.
Drafting Orders
In cases of domestic violence, it's critical to draft court orders carefully. The orders often have to be understood and enforced by third parties such as the police, making clarity and specificity key. Any ambiguity may lead to confusion and failure to enforce the order.
The terms of the order should be detailed and specific. For example, if there's an order that the abuser not attend at or near the children’s school, the name and address of the school should be specified.
Parenting Issues
Parenting issues in such cases can be bitterly contested and incredibly difficult to resolve. The lawyer should discuss with the client whether to seek an order for a custody and access assessment or to request an investigation and report by the Children’s Lawyer. If these forms of relief are likely to be required, they should be included in the application.
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