Q. IF I LEAVE, AM I GIVING UP ALL OF MY PROPERTY?
A. No. The issue of dividing up the property can be complicated, but neither person gives up their right to property simply by leaving.
If the couple is able to agree upon a division of property between themselves, this is perfectly acceptable.
If they are not, and they turn to lawyers, mediators or the courts to assist them, they will have to prepare a financial statement that includes detailed information about all the property that each of them owns. What usually happens is that the person whose property is worth more than the other pays money to her so that the value of the property is “equalized.”
There are some time limits to when a person can begin a claim for a division of property, but a considerable amount of time is allowed for the two people to separate and sort out any immediate issues such as custody and support before they must deal with the issue of property.
Q. IF I LEAVE, WILL I BE CHARGED WITH ABANDONMENT?
A. No. First of all, there is no criminal charge of abandonment in this sense. Of course, if you were to leave your children without proper care, you could face criminal charges but if, for instance, you flee to a shelter because of concern for your safety and you do not take your children because you know they are safe for the time being, you will not be “charged” for doing this.
However, there are other risks to leaving children behind. If you leave them with your partner, he may attempt to get custody of them on the basis that you left them behind. You may have a really good reason for not taking them with you (you may need a bit of time to figure out what you are going to do, you may not want to disrupt their lives by moving them to a shelter or other temporary housing, etc.) and there is nothing wrong with leaving them, as long as you know they are safe and well cared for.
You should make arrangements to see them regularly and frequently and you should remain involved in their day to day lives if this is at all possible. You should also speak with someone (a counsellor or lawyer) and tell that person why you left the children and discuss what short and long term plans you want to make for them. You may be advised to begin custody proceedings quickly so as to assure that you do not lose your legal rights and responsibilities to parent your children. If you feel that you need a break from the responsibilities of parenting for awhile, you should still speak with a professional so that you understand what risks are involved and what you can do to minimize them.
Q. IF I LEAVE, WILL THE COURT AUTOMATICALLY GIVE HIM THE CHILDREN?
A. No. Especially if you leave because of fear for your own safety and you maintain contact with the children and make arrangements to have them with you as soon as possible, this should not be a major factor in deciding who should have custody of the children. The court will consider what is best for the children by looking at who has been their main caregiver before the date of separation, who is best able to offer them stability and security and, if the children are old enough, what it is that the children want. If you do leave without your children, it is very important that you ensure that they are being appropriately cared for, whether that is by their father, another family member or a friend, and that they know how to get in touch with you.
Q. THE PROPERTY IS IN HIS NAME ONLY — DOES THIS MEAN HE GETS IT ALL?
Q. IF HE GETS CHARGED AND THEY ARREST HIM, HOW LONG WILL HE STAY IN JAIL?
A. There is no simple answer to this question. If your partner is arrested and charged with an assault against you, he will have to attend a bail hearing. This will probably happen within 24 hours of his arrest, although he can choose to delay the hearing if he needs more time to hire a lawyer. In all likelihood, he will be released from jail at that bail hearing, but on the condition that he stay away from you and not attempt to contact you in any way. Only if he is a repeat offender or if he has breached bail conditions before is he likely to be kept in jail.
The bail conditions will last until his trial is over (it can take months before this happens). If he breaches them by contacting you or coming to your home, you should call the police, who should arrest him and charge him with breaching his conditions. This may be difficult for you, as you may need to have contact with him to do with the children, money or because you are attempting to work things out. However, if you allow him to have contact with you (even though the court has said he cannot) and then after a few successful meetings, he assaults or threatens you and you call the police, they may be less likely to assist you because of your behaviour.
If at all possible, you should speak with a counsellor who can help you figure out ways to keep yourself and your children safe if your partner breaches his bail conditions and contacts you.
Q. IF I HAVE NO MONEY TO GET A LAWYER, WHAT CAN I DO?
A. In family court, you may be eligible for a legal aid certificate. You need to contact your local Legal Aid Office and arrange for an appointment to apply for a certificate. You will have to provide a great deal of financial information and tell the worker what issues you need the certificate to cover (for example, custody, access, support, restraining order, division of property). If you are successful in obtaining a certificate (there is usually a wait of a few weeks to find out), you may then hire a lawyer of your choice. Be warned: there are many lawyers who will not accept legal aid certificates, so you should do some checking out on your own.
If there is a women’s centre or shelter in your community, the counsellors there may have information about appropriate lawyers. There are some shelters with additional kinds of assistance for women who cannot afford to hire their own lawyers. There are also “Family Law Information Centres” where you can obtain some basic legal information. All family courts have duty counsel (lawyers) available to provide basic legal information to unrepresented people. In some urban centres, community legal clinics offer legal representation to people who meet their eligibility criteria. Check with your local legal aid office to find out what options are available in your community.
Q. CAN MY PARTNER GET ACCESS TO CHILDREN OF MINE, EVEN IF HE IS NOT THE BIOLOGICAL FATHER? WILL HE HAVE TO PAY SUPPORT FOR THESE CHILDREN?
A. In some cases. If your partner has been like a father to your children, whether or not he is the biological father, he has similar rights and responsibilities to the biological father. For example, if you began living with him when your child was 6 months old and you have lived together for several years, during which time he supported your child and treated her just like the children the two of you had together, then he will have an obligation to assist with her support and the right to have access to her if the two of you separate. On the other hand, if you lived together for a very short period of time, he did not contribute to your child’s support and you had sole responsibility for raising your child, he probably will not have these rights and responsibilities.
Q. IF MY PARTNER ASSAULTS ME IN FRONT OF THE CHILDREN, WILL THIS HAVE AN IMPACT ON WHO GETS CUSTODY? WHAT ABOUT ACCESS?
A. Yes. The law requires courts to consider spousal violence when deciding custody cases, even if the children are not physically harmed themselves. If you go to court to get custody of your children, you will need to make sure the judge is aware of the ways in which your children have witnessed your abuse. This includes hearing you being yelled at, being sent to their rooms just before a fight breaks out and all the other ways in which children are affected by living in a home that is contaminated by the violence of the father, as well as actually watching you get hit.
If his abuse of you is serious and has continued after the date of separation, you may be able to get a restraining order from the court to protect you from him. You may also be able to get an order for “supervised access exchanges.” This means that when you are exchanging the children for their visits with him, there has to be another person present to ensure that you are not harmed in any way. If you have concerns about your partner’s ability to care properly for your children, you should monitor his visits. If it appears that he is neglecting them or mistreating them, you can return to court with this evidence and attempt to change the access arrangements.
Many mothers face a difficult situation when the children do not want to go on a visit with their father. This may be because he is being abusive or neglectful, but it may also be just that they do not like the disruption to their routine. As long as you are satisfied that nothing inappropriate is happening during the visits, you should encourage the children to develop a relationship with their father and to find ways to enjoy the visits. If you have concerns for their wellbeing, talk to a lawyer about making changes to the access arrangement.
Q. WHY SHOULD I HAVE TO LEAVE THE HOME IF HAVE NOT DONE ANYTHING WRONG?
A. You may not have to leave the home. At the present time, if you fear for your safety, the most important thing is to get yourself and your children to a safe place: a shelter, or to the home of a friend or family member.
Once your immediate safety has been taken care of, you can proceed directly to court if that is your wish, and one of the things you can ask the court for is what is called “exclusive possession of the matrimonial home.” This simply means that you are asking for an order that you be permitted to live in the home without your partner. The issues of whether or not to sell the home, and how much of its value each of you gets will be dealt with later. If you are successful in obtaining this order, you and the children will be able to return to the home and continue with some of the stability of your old life.
If safety is not an issue, and you want to remain in the home, you should make this one of the things you negotiate when you are preparing a separation agreement. In this case, neither person has an automatic right to remain in the home, and so you will have to have good reasons why it should be you. For example, if you are seeking custody of the children, a good argument is that it is better for them to remain in the home they are used to living in.
Some couples manage to remain living under the same roof, but separately, when they cannot agree on who should leave the home. This is usually only a short term solution, and is not appropriate where the woman has been abused by her partner.
Q. WHAT IS A LEGAL SEPARATION?
A. People are legally separated once they begin living separate and apart.
You do not need a piece of paper or a court order to make you legally separated. However, most couples have matters they need to resolve, and it is wise to do so formally so that there can be no disagreement later. If your separation is reasonably friendly, you and your ex may be able to work things out yourselves. Even so, it is a good idea to have a lawyer prepare a formal, written separation agreement that you both review with your own lawyers and then sign. This way, if your relationship becomes less friendly in the future, you both have the signed agreement to rely on in the case of any disputes.
If your separation is less friendly, you may need to each hire lawyers to assist you in negotiating a separation agreement. You may also decide to use mediation as a way to resolve some of your differences. This can take months, depending on how many issues there are where the two of you are in disagreement.
Where there is real hostility or where there has been abuse, it is likely that the only way to resolve the issues will be through court proceedings. If this is how you proceed, you will have a court order rather than a separation agreement that spells out custody, access, support, property division and other issues.
For people who are living common law, a court order or separation agreement will be the final document cementing their separation. Divorce is available to married people. This can be a way to work out all the issues, but more commonly, separating married couples work out the details of their separation through a separation agreement and then apply to the court for a divorce simply to finalize the separation and allow either of them to remarry.
Q. DO I HAVE TO TELL HIM WHERE THE CHILDREN AND I ARE?
A. The general rule is that you do not have to tell your ex partner where you are, but if the children live with you and he has access to them he has a right to be able to have contact with them.
In a situation where there were no abuse issues, for example, your partner would be entitled to know where the children were living and going to school. He would have the right to know their telephone number and to call them from time to time, in addition to his visits with them.
If your safety is an issue because of his abuse of you, you may be able to get a restraining order preventing him from having some of this information. His access order may state that you will ensure that the children will call him at specified times, so that he is not calling your home and harassing you.
Q. WHAT CAN I TAKE WITH ME WHEN I LEAVE?
A. If you leave without having come to an agreement about who is getting what, you should take only what belongs to you personally. By this, we mean things like your clothes, jewellery, toiletries, items you brought into the relationship, etc. If you are taking the children with you, you can take their personal belongings, too.
If it is possible, take items such as all your personal identification, bank statements, copies of both of your most recent tax returns, the children’s identification and health cards, passports, a copy of the deed or lease and other such documents.
If you anticipate that you may have to leave in a hurry, it is very helpful to have made copies of these documents and stored them somewhere else, as well as to have a packed bag of emergency supplies such as clothing.
If you are planning a possible separation, it is a good idea to prepare a complete inventory of everything in the home. Taking photographs of the contents of your home is even better. This will make it more difficult for your partner to destroy or “disappear” items after you leave.
Q. DO I HAVE TO TESTIFY AGAINST HIM EVEN IF I DON’T WANT TO?
A. Unfortunately, yes. If your partner has been charged with a crime against you, you are the most important witness to the case. If you do not testify about what happened, it will be difficult for the court to find your partner guilty. Witnesses to all crimes have an obligation to testify and, although it does not happen often, can be charged with contempt or with obstructing justice if they refuse to do so.
If you have concerns about testifying, particularly if those concerns are about your safety, you should speak with the Victim Witness Assistance Program at your local court. If there is not such a program, arrange to speak directly with the Crown Attorney directly, or call your local women’s shelter for support and assistance.
Q. WHAT COULD HAPPEN TO ME IF I FIGHT BACK IN SELF-DEFENCE?
A. In Canada, people are allowed to fight back to defend themselves. However, we can only use the minimum amount of force (violence) that will protect us. For example, if you are trying to defend yourself against your partner who has hit you with his hand, you cannot pull out a gun and shoot him. Unless the circumstances are unusual, you probably cannot even use a knife. It is also important to know that the action can only be taken to protect yourself against something that is happening right now. If your partner has hit you and is walking away, you cannot attack him from the back. There are some exceptions to this if you can establish that, based on his past behaviour, you had reason to believe he was about to turn around again and continue with his assault against you.
Even if you act in self-defence, you may be charged with assault. If you are charged, you should talk to a lawyer right away.
Q. IF I DECIDE TO DISAPPEAR SO HE’LL NEVER FIND ME, WILL I BE CHARGED?
A. You are free to disappear on your own (unless, of course, you have other outstanding issues like debts, criminal charges, etc.). However, if you have children and are planning to have them disappear with you, you may have problems. If your ex has access rights to the children and you make it impossible for him to exercise those rights, he can go to family court and obtain an order that the children be returned.
In cases of extreme violence and danger, women and their children can be relocated and provided with new identities through a federal government program. For more information about this program, you should contact your local women’s shelter or police department.
(by OWJN, October 2008)