The Role of a Divorce Lawyer in Domestic Violence Cases in Toronto

In Toronto, as in many places around the world, the dissolution of a marriage can be a complex and emotionally charged process, especially when compounded by the presence of domestic violence.

Understanding Domestic Violence in the Context of Divorce

Defining Domestic Violence  

Domestic violence refers to a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner.  Abuse can be physical, emotional, or psychological, and can manifest in various ways:

  • Physical abuse includes any intentional use of physical force with the intent to cause fear or injury, like hitting, shoving, biting, or denying medical care.
  • Emotional abuse involves undermining an individual’s sense of self-worth, including, but not limited to, constant criticism, diminishing one’s abilities, name-calling, or damaging one’s relationship with their children.
  • Psychological abuse involves the elements of fear, threats, and isolation tactics.  This could include threatening to harm oneself or the children, denying money and other basic resources, or preventing a partner from making personal connections with others outside the home.

Prevalence of Domestic Violence in Toronto  

The presence of domestic violence significantly impacts divorce proceedings.  In Toronto, divorce lawyers who specialize in handling such sensitive cases are particularly attentive to the nuances that domestic violence introduces.

A divorce lawyer’s role extends to providing guidance on the division of assets and debts.  This can be complicated in domestic violence cases, where financial abuse (such as one partner having total control over finances) is prevalent.  Lawyers need to ensure that the financial settlements reflect the need to protect the victim post-divorce, enabling them to establish a secure, independent life.


Legal Protections against Domestic Violence in Ontario 

Ontario Laws Protecting Individuals from Domestic Violence

Restraining Orders: A restraining order is a legal order issued by a court to prevent one person from contacting or coming near another. In the context of domestic violence in Ontario, restraining orders can be sought whether or not the individual is married to the abuser. The order can prohibit the abuser from contacting the victim directly or indirectly, visiting the victim’s home or workplace, and can enforce a specified distance the abuser must maintain from the victim.

Exclusive Possession Orders: This type of order is particularly relevant in the context of marital relationships. An exclusive possession order grants one spouse the legal right to live in the matrimonial home while excluding the other, regardless of who owns the home. This is a crucial measure in cases of domestic violence, as it can provide the victim with a safe living environment without the need to seek alternative shelter.

Intersection of Domestic Violence Laws with Divorce Proceedings

Immediate Safety and Temporary Orders: During divorce proceedings, the immediate safety of the victim is a priority. Restraining orders and exclusive possession orders can be issued swiftly to ensure safety while the divorce process is underway. These orders can be temporary but can be extended as needed based on ongoing assessments of threat and safety.

Impact on Custody and Access: The presence of domestic violence significantly influences decisions regarding custody and access to children. Ontario courts prioritize the safety and psychological well-being of children in such decisions. A history of domestic violence can lead to restrictions or supervised access for the offending parent to ensure child safety.

Financial Support and Asset Division: In divorce proceedings, financial issues are often contentious. However, when domestic violence is involved, courts in Ontario may consider abuse when making decisions about spousal support and the division of property. The economic impact of abuse, including instances where one spouse may have been prevented from working or accessing financial resources, can be addressed in the final settlements.

Legal Representation and Advocacy: Victims of domestic violence are often at a disadvantage during legal proceedings, potentially facing intimidation or coercion. Legal representation is crucial in these cases.


Filing for Divorce in the Context of Domestic Violence 

Filing for divorce in Ontario when domestic violence is a factor involves several specific steps. These steps not only initiate the divorce process but also ensure immediate legal protections are in place to safeguard the victim.

Specific Steps Involved in Filing for Divorce with Domestic Violence

  1. Immediate Legal Protection: The first step is often securing immediate legal protections such as restraining orders or exclusive possession orders.
  2. Filing the Application: To file for divorce, a victim of domestic violence will need to submit an Application for Divorce to the appropriate court. This application should clearly state the grounds for divorce, which in Ontario can be based on physical or mental cruelty, among other reasons.
  3. Supporting Documents: Along with the divorce application, the victim should submit any relevant supporting documents, such as police reports, medical records, photographs of injuries, or records of communications that demonstrate abusive behavior.
  4. Legal Representation: It is crucial for victims of domestic violence to seek legal representation experienced in handling such cases.
  5. Emergency Motions: If immediate financial support or urgent issues regarding child custody need to be addressed, the victim’s lawyer can file emergency motions.

Impact of Domestic Violence Evidence on Divorce Settlements, Custody, and Support

Divorce Settlements: Evidence of domestic violence can significantly affect the terms of a divorce settlement. Courts may consider the impact of the abuse on the victim’s ability to work or manage finances when determining spousal support and dividing marital assets. Often, the court might award a larger share of the marital property to the victim as a form of restitution.

Custody Issues: In custody matters, the primary concern is the welfare of the children. Evidence of domestic violence is a critical factor in these decisions. The courts will typically favor arrangements that protect the children from potential harm. This might mean supervised visits or limited access for the abusive parent, depending on the severity of the situation.

Support Issues: When it comes to spousal and child support, evidence of domestic violence can influence both the amount and duration of support awarded. Victims may receive greater spousal support if the abuse has left them financially disadvantaged or if it has impacted their mental or physical health, limiting their employment opportunities.


Challenges Faced by Toronto Divorce Lawyers in Domestic Violence Cases

Divorce lawyers in Toronto who handle cases involving domestic violence face a unique set of emotional and legal challenges.

Emotional and Legal Challenges

  1. Emotional Toll on Clients and Lawyers: The emotional intensity of domestic violence cases can be draining for both clients and lawyers. For lawyers, the emotional labor involved in handling such cases, including listening to distressing stories and witnessing the ongoing impact of abuse, can lead to compassion fatigue and stress.
  2. Ensuring Client Safety: One of the primary concerns is the ongoing safety of the client, which can be jeopardized at any point during the divorce process. Lawyers must take measures to protect their clients, which might involve coordinating with shelters, arranging for secure communications, or filing for immediate restraining orders. Such measures must be implemented swiftly and discreetly to avoid escalating the situation.
  3. Gathering Evidence: Collecting evidence of domestic violence can be particularly challenging. Victims may not have physical injuries or may have not reported the abuse to authorities due to fear of retaliation.

Balancing Aggressive Legal Action with Sensitivity

  1. Navigating Legal and Emotional Landscapes: Lawyers must navigate the legal system while being acutely aware of the psychological impact of legal proceedings on their clients.
  2. Advocating in Court: In court, the lawyer must be a strong advocate for the victim, often facing an opposing counsel who may use aggressive tactics to undermine the victim’s credibility.
Yahia Khan