Legal Proceedings to prevent further Family Violence

 

 

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you 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 further family violence. If you have been a victim of physical beatings, sexual assault or threats by a spouse or partner, there are several remedies available to prevent further contact with the abuser. The discussion below identifies legal steps and options to protect the victim’s safety and prevent any further violence:

  1. 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. It also includes other details such as, when that assault took place.
  1. Once that person has been criminally charged, a ‘first appearance’ is set in Provincial Court. Your spouse or partner must physically attend and plead either guilty or not guilty to the assault charge against them. If your spouse is not prepared to enter a plea at that time and needs time to consult a lawyer, the Court may delay the case until a later date. Your spouse will then have to return to court on that date and continue with the case. This process could take a couple of months.

If your 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 to prove that they are guilty of assaulting you. You do not need a lawyer, as you are a witness for the prosecution. The Crown Prosecutor will handle the trial.

  1. 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 jail time. The type of sentence your spouse will receive depends upon the circumstances of the particular case. The sentence will be more serious if your spouse was charged with a similar offense in the past, if a weapon was used during the assault, or you suffered bodily harm or injuries.
  1. The criminal matter may also be resolved by your spouse/partner entering into a ‘Peace Bond’. The court approves a peace bond if the abuser is not found guilty of assaulting against you. However, as a peace order is a form of protection order, the court places strict conditions on the abuser to prevent them from harming you. You must show that you fear being harmed by your spouse and need some form of protection for your safety. Should the abuser violate these conditions, they will be criminally charged. This entire procedure usually takes about 6 weeks to complete.
  1. Another method to protect your safety is by obtaining a ‘restraining or protection order’. This is different from a criminal charge. If you are starting divorce proceedings or a legal 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 legal separation. If you are in a common-law relationship you may obtain an injunction’ in the form of a restraining order. This order will protect you from future threats of harm. To obtain a restraining order, you must show the court that there has been past violence or threats and that you believe there is immediate danger of more violence or harassment. Your spouse must be personally served with a copy of the application that will list the hearing date of the order. Once you obtain an Order from the Court, you must serve your spouse or partner with a copy of it. You should also register the Court Order with the police. If your spouse or partner does not follow the Order, you may call the Police for assistance.  Examples of your spouse violating the order are if they come on your property or contact you, despite the fact that the order prohibits this type of conduct. If your spouse or partner is arrested for violating a restraining order, they may be found in ‘contempt of court’. This will result in them being warned, fined or imprisoned. Generally, the first violation will result in a warning or a fine. If you voluntarily invite your spouse onto your property or try to contact them, then the Order may no longer be valid.
  1. If you are married, the Matrimonial Property Act provides you with an order to prevent your abusing spouse/partner entering your home. This Order will protect you whether you are in your family home or are temporarily renting a place to stay. You should consult with a lawyer to assist you with this type of order. The Matrimonial Property Act protects married spouses with their rights in the marital home, possessions or other financial assets, shared with your spouse/partner. The Court, not your spouse, will decide what you will be entitled to. The Matrimonial Property Act did not originally apply to unmarried partners. However, the new Act that takes effect on January 1, 2020, will include both married and 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 your part or ownership of the property, you may start an action to obtain your share. Items purchased items by both you and your spouse/partner will be divided according to what each of you contributed towards its purchase. The items that you received before the relationship with your spouse/partner will belong only to you.  If possible, take your separate property with you when you leave. However, if you already left your marital or family home, do not return to collect your personal possessions. The police may escort you back to the home so that you can collect your personal items.
  1. If there are children involved, the Court will always consider what is in their best interests. This test will be considered in custody decisions. For an example, if your spouse has abused the children as well as yourself, it is unlikely the Court will award him or her custody. Also, if you and your partner are not legally married, the rights of the father may not be guaranteed when it comes to taking custody of the children.
  1. 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. The following services will assist you with your financial concerns:
  • Social Services and Community Health. You may contact them at 1-877-644-9992
  • 24-7 Emergency Income Support Contact Centre at 1-866-644-5135
  • Family Court Services
  • Legal Aid Society of Alberta. You may contact them at 1-800-845-3425

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 nearest or safest shelter is by calling the local police or R.C.M.P. or by calling the family violence line at 310-1818.

 

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.