Legal Proceedings to prevent further Family Violence

The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses the legal procedures available to prevent family violence. If you have been a victim of physical beatings, sexually assault or threats by a spouse or partner, there are several remedies available to you to prevent further contact with the abuser.

You may have that person criminally charged. To charge someone with assault, you must call the police and have them lay a charge against that person. You may also go to the police station and tell them you want to “lay an information” against that person. An information is a document that states you are charging your spouse or partner with assault and when that assault took place.

Once that person has been criminally charged, a first appearance is set in Provincial Court. Your spouse or partner must appear and plead either guilty or not guilty to the charge of assault. If your spouse is not prepared to enter a plea at that time and requires time to consult a lawyer, they may adjourn the matter to a later date. Your spouse will then have to return to court on that date. This process could take a couple of months. If you spouse pleads not guilty, a trial date is set. You will be expected to go to court and testify as to what happened on the day of the assault. You do not need a lawyer as you are a witness for the prosecution. The Crown Prosecutor will handle the trial.

Once the charge has been laid, the Crown prosecutor will likely proceed even if you change your mind. You will still have to testify. If your spouse is found guilty of assault, the sentence may be a fine, probation or even jail time. The type of sentence your spouse will receive depends upon the circumstances of the case. The sentence will be more serious if your spouse has a related record, if a weapon was during in the assault, or you suffered bodily harm.

The criminal matter may also be resolved by your spouse or partner entering into a Peace Bond. A peace bond is ordered if you can show that you have a reasonable of harm from your spouse. The entire procedure usually takes about 6 weeks to complete.

Another method available to legally protect yourself is to obtain a restraining or protection order. This is different from a criminal charge. If you are starting divorce proceedings or a judicial separation, you may obtain a restraining order at the same time. You can also apply for a restraining order without starting a divorce action or judicial separation. If you are in a common-law relationship you may obtain an injunction order in the form of a restraining order.

To obtain a restraining order, you must show the court that there has been past violence or threats and that you believe there is immediately danger of more violence or harassment. You spouse must be personally served with a copy of the application that shows the hearing date. If you obtain an Order from the Court, you must serve your spouse or partner with a copy of the Order. You should also register the Court Order with the police. If your spouse or partner breaches the Order, that is does not obey the terms of the Order, then you can call the Police for Assistance. For example, if your spouse comes onto the property or contacts you and the Order specifically prohibits him or her from that particular conduct that is a breach of a Court Order. If your spouse or partner is arrested for breach of a restraining order, they may be found in contempt of Court and warned, fined or imprisoned. Generally, a first breach is given a warning or a fine. If you invite your spouse onto your premises or contact them, then the Order may no longer be enforceable.

If you are married, the Matrimonial Property Act provides legal procedures to order your spouse from your home. You may obtain such an Order whether your own your own home, or rent accommodations. You should consult with a lawyer to assist you with this type of order. The Matrimonial Property Act provides married spouses with rights to share in the matrimonial home, possessions and other financial assets of your marriage even if you never worked outside the home. The Court, not your spouse, will decide what you are entitled to.

This Act does not apply to unmarried partners. If you are forced to leave your home for your safety or your children’s safety, you should speak to a lawyer about your legal rights to the property. If you kept careful records, receipts and bills of sale to prove part or sole ownership of the property, you may start an action to obtain your share. Jointly purchased items should be divided according to what each of you contributed to its purchase unless you entered into a contract with your partner to divide the items another way. Those items that you acquire before the relationship will belong to you. If possible, you should take your property with you.

Do not return home to collect your personal possessions. The police may agree to escort you to the home so that you can collect personal items such as clothing, medication or pictures. You should consult with a lawyer if you want to take legal action to get what belongs to you.

The Court always considers what is in the best interests of the children when it comes to their welfare. The Court will consider custody and access and make any decisions based on their best interests. If you spouse has abused the children as well as yourself, it is unlikely the Court will award him or her custody. If you and your partner are not legally married, the rights of the father may be less certain when it comes to custody of the children.

Financial support is also available if you have to leave your home. You should tell your lawyer that you require financial support from your spouse if you are married. Social Services and Community Health can provide some financial assistance. You may also contact the Family Court Services for assistance in obtaining support for your children and/or yourself.

If you have little or no income and require legal assistance, contact the Legal Aid Society of Alberta. If you wish a divorce through Legal Aid you must have an urgent need; being abused by your spouse is usually considered an urgent situation.

If you are in a crisis situation and require immediate help, contact the local emergency shelter. They can provide a safe place for you and your children to stay. You might also stay with relatives or friends. You may find out where the shelter is by calling the local police or R.C.M.P., or by calling Social Services and Community Health Office.