Separation can be a difficult time for people. Changes in family life will add stress and exacerbate any existing personal difficulties family members were having before separation. Statistically, just over half the incidents of dating and marital violence occur after a relationship ends, as temper and frustration build up.
Many spouses who experienced violence during the relationship report an escalation in violence after separation, while others have their first experience with domestic violence after the relationship ends. If your spouse has been depressed, violent, moody, angry, or controlling during your relationship, you may notice these tendencies worsening as you begin the process of ending your relationship. Some spouses do not react well to the loss of control they feel when their relationship ends, especially if they have not been the one to “pull the plug.”
Because many spouses are still sharing the matrimonial home during the separation process, tensions can rise, and spouses can find it almost impossible to escape the unhealthy home environment.
If your partner has mental health issues, and you notice these issues becoming more pronounced after separation, seek help. Even if your spouse has not had problems with anger, violence, or mood disorders in the past, be alert to sudden changes in personality, and do not hesitate to seek assistance if you feel unsafe. You have a few legal avenues through which to seek protection, though your options depend on whether you and your partner are married or not, as explained below.
Options for Married Spouses
If you are married, you can apply to the court, under s. 24(1) of Ontario’s Family Law Act (FLA), for exclusive possession of the matrimonial home, on a temporary basis until you and your spouse have resolved the issues relating to your separation or divorce and secured new accommodations. (It is also possible to apply for a final, or permanent, order for exclusive possession of the matrimonial home, but this is almost never granted, particularly if the home is your and your spouse’s main asset.)
Section 24(3) of the FLA specifies that the court will consider the following when deciding whether to grant exclusive possession:
- The best interests of the children affected;
- Any existing orders under Part I (Family Property) and any existing support orders;
- The financial position of both spouses;
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation; and
- Any violence committed by a spouse against the other spouse or the children.
Although only violence already committed is included in this list, if your spouse is causing psychological distress to yourself or the children, the court will consider that as well. The violence need not be physical. However, past acts of violence will make it more likely the court will perceive a danger to you and order exclusive possession.
If you are granted an order for exclusive possession, that order is enforceable like a restraining order. If your spouse comes into the home in contravention of the order, he or she can be fined and/or imprisoned. The police have jurisdiction to arrest the offending spouse without a warrant, as per s. 24(6) of the FLA.
Options for Unmarried Spouses
If you are not married, you cannot apply for exclusive possession of your home, because the special protections afforded to the matrimonial home only apply to married couples. But, the FLA does offer protection to any cohabitating partner in the form of a restraining order. You can apply under s. 46(1) for a temporary or final restraining order against your common-law partner. It does not matter how long you have lived together, or if you are still living together. You can request that the court prevent your partner from contacting you, or coming with a certain distance of locations you frequent. This can include restricting the person from coming to a home that you share, or formerly shared.
Whether or not you are married, you can also pursue a restraining order in the criminal system if your spouse has already been violent toward you.
Your Safety Comes First
Finally, even if the courts do not agree that you are at risk, don’t keep yourself in a situation you feel is unsafe. A lawyer will tell you that it’s not advisable to flee the matrimonial home and establish a new status quo before trial, but a lawyer will also tell you that your safety should take priority over any legal strategy.
For legal counsel related to separation and family violence, call the Ontario family lawyers at Feldstein Family Law Group P.C. at (905) 581-7222. We’re here to help.