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. Because no custody decision has been issued, you may take your child out of the family home without your partner’s consent. However, you cannot take your child out of the country. Once you are in a safe place, you must apply to the court for child custody.

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

All children have the right to be heard by the court to protect their best interests. They are also 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. A judge must order it.  A judge may do so 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
• the child is capable of providing instructions to a lawyer.

Children who are not represented by a lawyer may still testify alone before a judge. To ensure your child can speak freely, the judge may ask you and the lawyers to leave the courtroom. The judge may also ask to talk to the child alone, for example, in their office.

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 for childcare expenses, special expenses (e.g., medical expenses, extracurricular activities, tuition), and post-secondary education expenses. These amounts are also determined based on 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 are always options, regardless of whether your partner agrees. If you’re married, you can file for divorce or legal separation (officially known as “separation from bed and board”). The law sets out various legal reasons for divorce, and intimate partner violence is one of these reasons.  

Can I leave my home in a situation of intimate partner violence?

You can leave your home to seek safer shelter at any time. Once you are somewhere safe, you may have to take certain steps. If you and your partner are both on the lease, you can end your lease for reasons of intimate partner violence. If you want to keep in your home or lease and ask your partner to leave, there may be some recourses available to you.

Is family mediation recommended in situations of intimate partner violence?

Family mediation isn’t generally recommended. Partners in a context of intimate partner violence are often on an unequal footing in negotiations. This can hinder the mediation process. Using mediation is always a personal decision however.

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 right to use them;
• Objects furnishing or decorating the family’s homes;
• Family’s motor vehicle(s);
• Savings accumulated in a retirement plan and the Quebec Pension Plan during the marriage.

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

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 can be compensated for having enriched them.

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

If you fear for your life or safety, you can apply for a civil protection order. This order is issued by a judge. You can apply for it when 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 to cease certain behaviours or prohibit your spouse 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 from and stop living with your partner. You have no obligation toward them, but they have an obligation toward 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 toward me?

If the claim is pending, we recommend you ask the Immigration and Refugee Board (IRB) to separate your files. It’s possible to add additional 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.