13 Frequently Asked Family Law Questions About Situations of Intimate Partner Violence

Children

Can I take my child out of the family home without my partner’s consent?

Yes. Since no custody decision has been issued, you may leave your family home with your child without your partner’s consent, but you cannot leave the country. However, once you are in a safe place, you must petition the court without delay to obtain legal custody of your child.

Can my child be represented by its own lawyer during separation proceedings?

In certain circumstances, children have the right to be heard by the court to protect their best interests. They are then eligible for the services of a legal aid lawyer. Depending on the parents’ financial situation, there may be some fees for these services. This doesn’t mean all children are automatically represented by a lawyer as a judge must order it first.  A judge may allow a child to be represented by a lawyer if :

• it’s in the child’s best interests for a lawyer to be involved in the parents’ conflict,
• the child is mature enough, and
• is capable of giving a mandate (instructions regarding their wishes) to a lawyer.

Even if a child is not represented by a lawyer, it might still be possible to testify alone before a judge. To ensure your child can speak freely, the judge may ask the parents and the lawyers to leave the courtroom. The judge may also ask to talk to the child outside of the courtroom, in their office for example.

In youth protection files all children are represented by a lawyer no matter the circumstances.

What am I entitled to in terms of child support?

Child support is mandatory. The amount is determined based on a table that applies to all separated parents. This table takes into account factors like each parent’s parental time and income. Additional amounts can be added to child support, like for childcare expenses, special expenses (e.g., medical expenses, extracurricular activities, tuition), and post-secondary education expenses. These amounts are also determined on the prorata of each parent’s income.

*See the links at the bottom of this article for more information on calculating child support.

Separation and Divorce

Can I separate or file for divorce even if my partner doesn’t want to?

Whether or not you’re married, separation or divorce is always possible, regardless of whether your partner agrees to or not. If you’re married, you can chose between filing for divorce or legal separation (officially known as “separation from bed and board”). The law sets out various legal reasons for filing for divorce, and physical or mental cruelty is one of these reasons.  

What happens to my lease if I want to leave my partner?

You can leave your apartment at any time to be safe. Once you're safe, you'll need to quickly take steps either to reintegrate your apartment and ensure that your partner has to leave, or to terminate your lease and free yourself from your obligations (payment of rent, damage to the property, etc.).

Different recourses exist, depending on your situation and your choices.

For example, in some cases, it may be possible to request termination of a lease due to intimate partner violence, if the safety of the tenant or that of a child living in the property covered by the lease is threatened. This recourse is useful if you wish to leave the home to find a new one that will be safer.

There is also a procedure for requesting termination of the lease (your share, or that of your partner if you are roommates), if you can no longer live in your apartment because cohabitation has become virtually impossible - what is called a disturbance of enjoyment causing serious prejudice. This recourse is useful if you want to leave the property to find a new one, or if you want to keep the property and ensure that the other person has to leave.

In some cases, if your name does not appear on the lease and you continue to occupy the property when cohabitation ceases, you may be entitled to become a tenant and keep the dwelling. If the conditions are met, a notice of cessation of cohabitation must be sent to the landlord within two months of your partner's departure.

Family law recourses are also possible. For example, in certain cases, exclusive use of the home may be requested from the Court for the parent who obtains custody of the children.

Since this is a complex issue, we recommend that you consult a lawyer about the options available to you.

Is family mediation recommended in situations of intimate partner violence?

While family mediation is on a voluntary basis, it isn’t generally recommended in situations of intimate partner violence. In a context of violence, partners are often on an unequal footing in negotiations as the violent partner may have more leeway and persuasion to win arguments during the mediation, thus hindering the process and possibly even making it unsafe for the victim. That being said, choosing mediation or not is always a personal decision.

Can I receive financial compensation for the violence I experienced and its impact on my life?

Yes, you could be entitled to compensation depending on your specific situation. 

• If you experienced a criminal offense, you may be eligible for help from IVAC. This can include income replacement, reimbursement for certain medical expenses and professional healthcare fees, or a lump sum for sequelae caused by the injury.
• You may also be entitled to damages for the injury you suffered due to violence. They can be claimed through a civil suit or as part of separation or divorce proceedings. 
• If an accused is found guilty of a criminal offence, you may, under certain conditions, request monetary compensation for certain financial losses incurred due to the offence during the criminal proceedings. 

My partner and I are married. How will our property be divided if we divorce?

When a married couple divorces, their property is divided according to the mandatory rules that apply to the family patrimony. The family patrimony includes :

• The family’s home(s) and the rights which confer use of them ;
• Objects furnishing or decorating the family’s homes and which serves for the use of the household ;
• Family’s motor vehicle(s) used for family travel ;
• Savings and benefits accumulated in a retirement plan and the Quebec Pension Plan during the marriage;
• Savings and benefits accumulated in a RRSP during the marriage.

The remainder of the spouses’ property is divided in accordance with their matrimonial regime.

Some exclusions may apply for example in cases of donation or inheritance.  

Am I entitled to financial compensation if the money or services I contributed during our relationship enriched my partner?

Yes. Under certain conditions, you may apply for compensation based on unjust enrichment if you aren’t married to your partner, or a compensatory allowance if you are married. For instance, if you worked at your partner’s business without any pay, you could petition for compensation for having enriched your partners patrimony.

Is there a civil remedy to protect me from my partner's violence?

If you fear for your life, health or safety, you can apply for a civil protection order. This order must be issued by a judge. You can apply for it while you file for separation or divorce. Its purpose is to implement measures to protect you and your children from violence. For example, a judge may order your ex-partner to cease certain behaviours or prohibit them from contacting you.

* Consult the links at the bottom of this article for more information on separation and divorce in the context of intimate partner violence.

Immigration

I obtained my permanent residence after being sponsored by my partner. Can I separate and stop living with them?

You have the right to separate and no longer live with your partner. You have no obligation towards them, but they have an obligation towards you for the duration of the sponsorship undertaking (3 years for married and common-law partners).

What are my options if my temporary status has expired or is about to expire?

Ninety (90) days after your temporary status expires, you can apply for a temporary resident permit (TRP) for victims of family violence and apply for an open work permit. There is no fee for the initial TRP. Obtaining it gives you access to health care under the Interim Federal Health Program (IFHP). This permit is temporary, but you can apply for another TRP once it expires. Your application will be examined by an immigration officer.

My partner and I claimed refugee status together. My claim is still pending. What can I do if my partner is being violent towards me?

If the claim is pending, you may ask the Immigration and Refugee Board (IRB) to separate your files. You may add reasons in support of your refugee claim.

*Consult the links at the bottom of this article for more information on the options available to victims of domestic violence in an immigration context.

Do you need Assistance ?

The Rebâtir helpline offers 4 hours of legal advice free of charge in all areas of law.

Depending on your income and situation, you may qualify for legal aid.

You can contact Juripop for a referral to a lawyer specially trained to work with victims of intimate partner violence.

Our counsellors are always available at SOS violence conjugale to connect you with resources specialized in intimate partner violence, Crime Victims Assistance Centres (CAVAC), as well as other legal information resources. 1 800 363-9010.