There are a number of ways the law can assist someone in an abusive relationship. This publication explains some legal options for dealing with an abusive spouse or partner. While some of the information that follows will be helpful to anyone in any kind of abusive relationship, the focus is on individuals who are living together in an intimate relationship.
Hopefully, this publication will also make more people aware of relationship violence and help them understand the harm caused. Relationship violence is a complex, serious social problem. It affects not only the victims, but their families, friends and communities. And the personal, social and economic costs cannot be underestimated when it comes to things like physical and emotional injury, substance and alcohol abuse, lost productivity, medical expenses and criminal justice costs.
Abuse between spouses or partners is not just a private problem. Assaulting another person is a crime, whether they are a spouse, a partner or a stranger. The law applies equally regardless of sex. Anyone can be the victim of relationship violence and abuse.
The Cycle of Violence
Many believe that abusive relationships are limited to lower-income families or to certain ethnic or cultural groups. This is not true. Individuals from all backgrounds are abused. Often they suffer alone for a long time, not wanting to admit they are being abused.
Even though there is no such thing as a typical abuser, some studies suggest that there is a typical pattern to abuse. It is referred to as the cycle of violence. It has three distinct phases. During the first phase tension, frustration and anger on the part of the abuser may gradually build up over time. The build-up period may range from days to months, or possibly even years.
As the tension builds, the possibility that abuse will occur becomes greater. At some point an explosion occurs; this is the second phase. The abuse may last minutes or may continue over a period of days.
Following the abuse there is usually a period of relative calm; this is the third phase. It is often referred to as the honeymoon phase. During this phase the abuser is likely to apologize to the victim and try to make amends.
Then the cycle repeats itself.
Abusive behaviour, however, is not always this predictable. Abuse can vary widely from case to case.
The term "abuse" covers a wide range of behaviour that may or may not involve actual physical violence.
Physical abuse is any aggressive behaviour directed at another person, such as pushing, pinching, squeezing, shaking, grabbing, biting, slapping, punching, kicking, choking, etc. It also includes throwing objects or using a weapon. Needless to say, such conduct will often result in serious injuries. But many victims are subjected to varying degrees of physical abuse without suffering physical injury that is visible to the eye.
Sexual abuse is forced participation in any type of sexual activity. No one, including a spouse or partner, has the right to force someone to participate in sexual activity. If force or threats of force are used to gain compliance, a charge of sexual assault can be laid.
Psychological abuse is the infliction of emotional pain and suffering by doing things to control or degrade another person, such as persistent verbal attacks on self-esteem, repeated accusations of infidelity, threats of suicide or harm to others, and control over friends, clothes and money.
Forced confinement is when someone does not allow another person out of, for example, a house, room, bed or chair.
Abuse towards pets or property is the destruction of or harm to property or animals. This may include the direct or indirect threat that "you are next."
Staying or Leaving
People stay in abusive relationships for many reasons. They may believe their partners when their partners say that the abuse will stop. They may have faith in the traditional family and want to remain a part of it. Possibly they have tried to leave and faced such financial difficulties that they felt forced to return. Some fear retaliation. Others, having lived in an abusive relationship for years, have come to believe there is no alternative and may even feel that they deserve such treatment.
Leaving a relationship and starting out on one's own is difficult enough. When that decision must be made in the midst of the trauma of abuse, it is even more difficult. It is important to understand that leaving an abusive relationship can be dangerous. As you are seeking to regain some control over your life, learn about ways to stay safe and get help. Without help, the abuse is not likely to stop. There are many alternatives to consider. Assistance is available. Do not put yourself at risk.
If you are in an abusive relationship, it is important to develop a safety plan and strategies to increase your safety. The strategies which follow are only some examples. Plan ahead and be prepared. Think about what has and has not worked well in the past.
Monitoring of Your Activities
- If you think your activities are being monitored they probably are. Abusers often want to know your every move. Be aware that abusers can easily monitor things like phone calls and computer use. Spyware, recording devices and global positioning systems (GPS), that track your location, are readily available.
- It is not possible to remove all traces of your online activities. Also, if it is not your regular habit, it may be dangerous to suddenly start deleting your entire history from your computer.
- If you think your computer activity may be monitored it may be advisable to continue to use it for normal activities, such as the weather or news, and use a safer computer for things like looking for a new job or apartment, or finding information about abuse.
- Remember that e-mail and text messaging are not confidential ways to talk to someone about abuse or your escape plans. As well, older models of cordless phones may be easily intercepted. Most cell phones and some landlines will show your call history. Telephone bills can also be used to gain information about your activities.
Emergency Plan for Crisis Situations
- Plan your emergency exit - determine the quickest, safest route out. If you find yourself in an unstable, explosive situation, try to position yourself close to an exit and away from anything that could be used as a weapon against you. Plan various safe places to go.
- Ask others to contact the police right away if they hear a disturbance. Decide on a code word or phrase that will let others know that you need them to call the police immediately. Shout out for help. You have the right to protect yourself.
- Store a packed travel bag with someone you can trust. Include personal items needed to get you through the crisis. Be sure to include originals or copies of important documents and any required medication. You may want to include something special for your children.
- Keep spare car, house and office keys, debit and credit cards, and some cash where you can easily get to at all times.
- If possible, get your own bank account and credit cards. Try to set enough money aside to get you through until you are able to organize your financial affairs. Arrange to have bank and financial statements mailed to a post office box or trusted friend or trusted family member.
- Find information about local shelters and support services listed on the Abuse Help Lines pages near the front of your SaskTel telephone directory and locate and record emergency contacts.
On Your Own: Safety Plan for Home and Work
- If you live apart from the person abusing you, contact your local police service about crime prevention programs and ideas to secure your home. Change the existing locks and determine other points of entry, such as windows, that need to be secured. Let other people know that your abuser no longer lives with you.
- Get an unlisted phone number. Find out about privacy and security features offered by SaskTel, listed at the front of your SaskTel telephone directory, or those offered by your phone service provider.
- Provide others with a verbal description or picture of your abuser and have a plan to deal with unexpected visits.
- Take different routes to and from regular destinations. Always lock your vehicle doors. Stay alert. Park in well-lit areas. Ask a friend or neighbour to escort you.
- Make sure that your children have a safety plan for when you are not with them. Review your plan regularly with your children and make changes as needed. Keep a list of important emergency contacts close at hand.
- Give clear instructions to care-providers, teachers, etc. about who is authorized to pick up or visit your children.
If There Are Children
When parents are living together, they share custody of their children. If parents are separating, they will have to decide who will have custody of the children or how they will share custody of the children. If parents cannot agree, the courts can be asked to determine the matter.
Generally, the best solution is for parents to reach an agreement about custody. However, when a parent is caught in an abusive relationship, it is highly unlikely there will be any kind of rational discussion, either about leaving or possibly taking the children. The law says that where a custody order does not exist, it is an offence for one parent to take the children from the other parent with the intent to deprive them of access to the children. An exception is where the children would be in danger of "imminent harm" if they were left at home.
If you are forced to leave your home for your own protection and take the children with you, contact a lawyer as soon as possible so that the matter of custody may be addressed without delay.
If you decide to leave the children in the home temporarily, but ultimately want custody of them, it is important to seek legal advice immediately. If a court is asked to decide matters of custody and access the best interests of the children will be the only consideration.
Once an abused individual has decided to leave an abusive relationship there are a number of choices to make, including...
- whether to call the police
- where to live
- whether to apply for custody of any children
- whether to take any other legal action
The following sections attempt to provide information that will assist in making these kinds of decisions. A number of different options are available depending on your individual circumstances.
Help from the Community
Finding a Place to Go
If you are being abused you can try to protect yourself and prevent future abuse. One way to do this might be to leave the home and stay with other family or friends, or check into a motel or hotel. An emergency shelter, safe house or transition house may also be an option. The RCMP or the police, if requested, will escort you out of the family home to any safe place you choose.
The Abuse Help Lines, listed near the front of SaskTel phonebooks, provide information about abuse, counselling and support services, as well as contact information for safe shelters and help lines.
Immediate Financial Assistance
Ideally, a victim of abuse may be able to save up a private "nest egg." Even a small amount of money might be enough to buy some time to seek financial assistance or to begin organizing a new life and financial independence. If no money or income is available, emergency financial support may be available at any government office of Social Services, listed in the Government of Saskatchewan blue pages of the telephone book. You can also find information about government Financial Help online.
When applying for financial assistance, it is important to have the following documents...
- Saskatchewan Health Card
- Social Insurance Card
- personal ID
- birth certificates, including those of the children who are leaving the home
- doctor certificates or prescriptions for special medication if required
Counselling for the Abuser
If the abuser recognizes their problem they may be willing to get counselling. Regional Health Authorities offer programs that may include treatment programs. To find out what programs exist in your area, contact your local health region. You can also call Saskatchewan Health toll-free at 1-800-667-7766. Treatment by a psychologist, psychiatrist or counsellor may also be of assistance.
The criminal system applies to everybody. However, it is important to note that not all forms of abuse are crimes. If an act is a crime, it can be dealt with by the criminal system. An act of abuse that is not a crime cannot be dealt with by the criminal system.
It is not the victim who decides to proceed under the criminal law - it is the police or the Crown Prosecutor's office. An abused person does not need a lawyer; a Crown Prosecutor will handle the case in court. The Crown Prosecutor does not act for the victim, but rather represents the public. This is because all crimes are considered to be offences against society as a whole and not only against the individual victim. The victim's role, once the prosecution begins, is that of witness for the Crown Prosecutor in the case against the accused.
Assault and Sexual Assault
Physical or sexual abuse is assault. Assault is a crime. An assault is committed when a person intentionally applies force to another without their consent. This includes any kind of sexual contact without consent. An assault is also committed when a person threatens to apply force to a person and the victim believes that person has the ability to carry out the threat. Physical injury is not required.
The law does not distinguish between assault on spouses and partners or strangers. A spouse has no more right to assault or sexually assault their spouse or partner than to assault a stranger on the street.
There are different types of assault charges depending on the circumstances.
- assault occurs where force is used or threatened but there is no physical injury or the injury is very minor
- sexual assault occurs when a person has sexual contact, such as kissing, touching, fondling or intercourse, with another person without their consent
- assault or sexual assault with a weapon occurs where a weapon, including an object such as a pen or bottle, is used during the assault
- assault or sexual assault causing bodily harm occurs where the assault results in bodily injury of such an extent that it interferes with health or comfort
- sexual assault with threats occurs if the person committing the assault threatens to harm someone else if the victim does not consent
- sexual assault with another party occurs if more than one person participates in the sexual assault
- aggravated assault or aggravated sexual assault occurs if the victim was wounded, maimed or disfigured during the assault or if their life was endangered
Stalking or Criminal Harassment
Stalking is an offence called criminal harassment under the Criminal Code. Criminal harassment is behaviour that causes another person to fear for their safety or for another person's safety. Behaviour that the law prohibits includes repeatedly following a person from place to place, repeatedly communicating with them, watching their home or workplace, and engaging in threatening conduct directed at them or any member of their family.
There are other abusive acts that are Criminal Code offences. For example, if a person damages the property of another, or prevents another from enjoying or using their own property, they can be charged with the Criminal Code offence of mischief. Causing a disturbance and uttering threats are other examples.
Calling the Police
It may be possible to leave or call the police before a situation turns violent or abusive. If assaulted, it is generally best to leave, if at all possible. If contacted, the police may be able to prevent future abuse and provide some immediate protection.
In a crisis situation it is important to tell the police whether your life, or that of your children, is in danger, or if a weapon is being used. It will help the police to assess the urgency of the call. Be as clear as possible.
When the Police Arrive
When the police arrive they will assess the situation. If the abuser is violent they may be restrained. The police will ask you questions privately about the situation to gather evidence about the assault. The police will decide whether there is enough evidence to lay charges.
Some of the things the police will want to know are...
- Are there any visible marks of violence?
- Is there other evidence of assault, such as overturned furniture or torn clothing?
- Is there a past history of assault?
- Were there any witnesses to the assault?
You may need medical attention for your injuries. Medical reports and photographs that document any injuries can also be helpful if the matter goes to court.
Keep a Record
Your testimony will be an important part of the proceedings if the matter goes to trial. However, it may be some time before the trial takes place and by that time it may be difficult to remember all the details. For that reason it is a good idea to write down what happened as soon as possible while the details are still fresh.
Support for Victims of Crime
Police-based Victim Services are available in a number of police stations across Saskatchewan. These programs work closely with the police and help victims in the immediate aftermath of the crime and throughout the criminal justice process. Services offered include crisis intervention, information, support and referrals to other specialized programs and services. For more information, call Victims Services at 306-787-3500.
There are also Domestic Violence Victim Services in some parts of the province.
Laying the Charge
Police must treat assault, sexual assault or criminal harassment against a spouse or partner as they would any other case. They are required to lay a charge if they have reason to believe that a crime has been committed. The Crown Prosecutors' offices are directed not to withdraw charges merely because the victim is reluctant to testify, or because there is a prospect of reconciliation between the parties.
Prosecuting assaults and sexual assaults between spouses and partners in the same fashion as those between strangers accomplishes two things. First, it raises awareness of the fact that assaults and sexual assaults between spouses and partners are as serious and as wrong as assaults against strangers.
Second, it takes the matter out of the victim's hands. They cannot be bullied or threatened into asking that the charges be dropped. It is up to the Crown Prosecutor to decide whether the case will proceed. If the abuser tries to interfere with the case - for example by threatening the victim or asking them to lie - additional criminal charges may be laid.
Even if charges are laid victims may still have safety concerns. The police will decide whether or not to arrest the accused when the charges are laid. If the police believe that the accused is no longer a danger to you they may serve a summons requiring the accused to attend court on a certain date and time to answer to the charge without arresting them.
Even if the accused is arrested by the police and taken to the police station they will usually be released while waiting for their court date. You can ask the police to let you know what happened after the arrest. If it is believed that the accused might still be a danger, it is possible that conditions will be attached to their release. Conditions of release for an accused person can include the following...
- limited or no contact with the victim
- limited or no contact with the couple's children
- no access to certain property
- other conditions as are reasonable in the circumstances
You can recommend appropriate conditions for your protection. Such recommendations should be made to the police officer that investigated the matter or the Crown Prosecutor.
Any conditions imposed at the time of release remain in effect until the entire case is over, unless the court changes them. Either the accused or the Crown Prosecutor can apply to the court to have these conditions changed. If you want the conditions changed, you can speak to the Crown Prosecutor. If the prosecutor agrees they may make an application to the court to have the conditions varied.
If any condition is broken, a separate criminal offence known as "breach of recognizance" or "breach of undertaking" is committed. If this happens and you are aware of it you should report it to the police immediately.
Going to Court
After a charge is laid, the person charged with the offence is called the "accused" and the victim is called the "complainant."
When a charge is laid, the accused is given a date and time to appear in court. On that day the accused will have to answer to the charge. They have three choices...
- plead guilty to the charge
- plead not guilty to the charge
- request an adjournment
If the accused pleads guilty to the charge, they will be sentenced. The judge may adjourn the matter to another date for sentencing. If the accused pleads not guilty to the charge, a trial date will be set. The trial date may be some time away.
During the trial, the Crown Prosecutor will call the complainant to give evidence before the court. Evidence must be given under oath or a promise to tell the truth. The complainant must also answer questions asked by the lawyer defending the accused person.
The Crown Prosecutor may also call other people who have evidence to give in support of the complainant. These witnesses could include anyone who witnessed the assault or stalking behaviour, or others such as the investigating officer or medical personnel who may have examined the complainant after an assault.
When the Crown Prosecutor is finished presenting evidence, the lawyer for the accused may call witnesses. The accused does not have to testify but may do so if they wish.
Domestic Violence Court
In some centres in Saskatchewan there are Domestic Violence Courts created to deal specifically with domestic violence cases. These courts are designed to deal with the specific needs of the victims of domestic violence, their families and the accused. They provide for early intervention and a multidisciplinary approach to dealing with domestic violence. The accused can choose to plead guilty and have their sentencing postponed until they have completed a treatment program. If the abuser successfully completes the program, the judge will consider this when determining a sentence. Support is provided to the victim throughout the process. Victims can be assisted with safety planning, varying release conditions, preparing for court if there is a trial, and preparing victim impact statements. Victims can also receive referrals for counselling and updates on the accused's progress.
Sometimes a victim who has been assaulted or stalked does not wish to give evidence against their spouse or partner. However, in some cases they will be required to do so. A victim's testimony is very important to the case. Sometimes it is the only evidence available and a charge of assault, sexual assault or criminal harassment may be proven solely on that evidence.
It is important for victims to get the assistance they need to enable them to appear and testify in court as required. In Saskatchewan there are services that provide court orientation and support to children and other vulnerable witnesses. For a list of the programs and their contact information see Victim/Witness Services or contact Victim Services at 306-787-3500.
If the Crown Prosecutor wants you to testify, you will receive a document called a witness subpoena. This means you must go to the court at the time indicated on the subpoena. Usually the Crown Prosecutor will contact you before the date of the trial, so that they can go over the information before the trial. If called to give evidence, you must truthfully tell the court what happened whether you want to or not.
You may have fears and concerns about testifying in court. You may be worried about giving personal information. You may fear retaliation. You may be unsure about understanding and answering questions well. You may be worried about not remembering important dates, times or other details. These concerns are normal. The Crown Prosecutor and victim services can provide you with information about what to expect in court and options that may make testifying easier.
If you ignore a subpoena to appear in court you can be arrested and brought before a judge. If you refuse to testify in court you could be held in contempt of court and face a fine, or jail or both.
In cases where a victim wants to have charges dropped, they may be referred to a victim coordinator for review of the case. The victim coordinator can also help prepare the victim and assist the prosecutor in preparing a reluctant or frightened victim for court.
The Judge's Decision
After hearing all the evidence, the judge must find the accused either guilty or not guilty. The accused will not be convicted unless guilt is proven beyond a reasonable doubt. A finding of not guilty does not mean that the accused did not commit the crime or that the judge did not believe the victim. It may simply mean that there was not enough evidence to prove the case beyond a reasonable doubt.
It is difficult to briefly define the notion of "beyond a reasonable doubt." Generally a person cannot be convicted of a crime if, after considering all the evidence, the judge or jury is unsure whether the accused committed the offence. To convict, the judge or jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the offence.
If the accused pleads guilty or is found guilty by the judge, they will be sentenced. It is important to understand that the accused is being sentenced only for the offence before the court. Often a victim will suffer many assaults or much harassment before they finally go to the authorities. Victims might feel that the court should take the entire history of their abuse into consideration. If you understand that the court has no choice but to pass sentence for the current offence only, there is less chance that you will feel that you have not been given proper consideration.
After a successful prosecution, Crown Prosecutors are directed to provide the court with victim impact information, to advise of appropriate treatment programs, and to seek appropriate penalties, including jail time. You can complete a Victim Impact Statement to describe in your own words how the crime has affected you. To get a Victim Impact Statement form contact your nearest police station or Victims Services toll-free at 1-888-286-6664. You can complete a Victim Impact Statement at any time but it must get to the judge before the accused is sentenced in order for your statement to be considered by the judge when deciding on a sentence.
The sentence will depend on a number of factors, including the severity of the assault or harassment and previous convictions. When the victim of an assault is the spouse or the child of the accused it is considered an aggravating circumstance that can result in a harsher sentence. There are various options for the judge, who must decide the appropriate sentence...
Absolute Discharge - With an absolute discharge there is a finding of guilt but the offender will not receive any punishment, nor will they be placed on probation. They will not have a criminal record for the offence.
Conditional Discharge - If the judge attaches conditions to the discharge, it is a conditional discharge. The judge orders a term of probation. Community service may be a condition. The Crown Prosecutor may apply to have the discharge revoked if the person does not complete the conditions.
Fine - The amount will vary with the seriousness of the crime and criminal record of the offender.
Suspended Sentence - A judge may suspend the sentence and place an offender on probation for a specified period of time. If the offender completes the probation successfully they will have a criminal record for the offence but will not be punished further. If they breach a term of probation they can be charged with breach of probation and also be brought back to court and given a fine or jail term for the original charge.
Conditional Sentence - A conditional sentence is served in the community instead of jail. This type of sentence is available for some less serious offences. It can be for any period of less than two years. There are certain terms that are a part of the sentence. Along with supervision, these terms will govern the offender in the community. A conditional sentence may appear to be similar to a probation order. However, if the conditions of the sentence are not met, the offender may face harsher consequences. Violations could result in the offender serving the rest of the sentence in jail.
Jail term - The length of any jail term ordered will vary with the seriousness of the offence and the previous criminal record of the offender. Where a judge orders a sentence of imprisonment for 90 days or less the judge may order that the person serve the sentence intermittently and set out certain time periods when the offender must be in jail. For example, the person may be allowed to serve their sentence only on weekends and holidays, allowing them to continue working, studying or looking after their family while serving a short sentence. When a person serving an intermittent sentence is out of jail, they are on probation.
More about Probation
Probation is a court order that may be imposed in addition to a fine or a jail term and must be imposed upon a conditional discharge or the granting of a suspended sentence. A probation order usually lists conditions that are intended to aid in the control or rehabilitation of an offender.
Conditions of a probation order may include...
- regular reporting to a probation officer
- abstaining from alcohol
- treatment for an alcohol problem
- limited or no contact with the victim
If an offender does not follow all of the conditions of a probation order they could be charged with breaching a probation order. Breach of probation is a criminal offence.
If you fear you may be harassed or abused in the future, and have good reason to believe so, you can get protection from the courts in the form of a peace bond. A peace bond is not a criminal conviction. It is a court order that requires another person to "keep the peace" for a certain amount of time and to obey any other conditions the court may add. As long as the conditions of the peace bond are met, the person will not be charged with a criminal offence. If the conditions of the peace bond are broken, however, the person may be charged and convicted of a criminal offence, be fined or jailed, and will then have a criminal record.
How to Get a Peace Bond
You must make and sign a statement called an "Information" stating that you fear for your safety and stating the reasons why you are afraid. Generally, in rural areas the Information is sworn at the local RCMP detachment; in larger centres it is sworn at the Police Station or Crown Prosecutor's office. The defendant can then be required to appear in court on a certain date and time. On the court date, if the judge is satisfied that you have reasonable grounds to fear for your safety or the safety of your family or property, the defendant will be asked to enter into a peace bond.
If the defendant agrees to the peace bond, the judge can grant the peace bond right away. The defendant must read and sign the peace bond.
By agreeing to sign a peace bond, the defendant agrees to certain conditions, such as to...
- keep the peace and stay out of trouble
- not harm or harass you
- not see, phone, write or send messages to you
If the defendant will not agree to the conditions, or sign the peace bond, the judge will order a hearing. A hearing is like a trial. The judge listens to both parties. Then the judge decides whether to order the peace bond.
A Crown Prosecutor will conduct the case. The defendant may be represented by a lawyer or may speak for themselves at the hearing. A peace bond can be ordered for a period of up to twelve months, if the judge decides that your fears are justified.
You should keep a copy of the peace bond with you at all times. You should call the police right away if any of the conditions of the bond are broken.
Getting a Peace Bond
Victims Services can award compensation for victims of violent crimes if they were committed within Saskatchewan. This includes compensation for victims of relationship violence. Compensation is not awarded for property crimes. The crime must have been reported to the police and the victim must be willing to testify in court. The accused does not need to be convicted of the crime for the victim to receive compensation.
The victim or dependents of the victim may apply for compensation. Certain other persons may apply on behalf of a person under the age of 18, a person of unsound mind, or a dependent adult. The application must be made within two years of the date of injury or death. If the crime is sexual assault or one of certain other specified sexual offences victims have up to two years after the incident is reported to the police to apply.
Compensation may be available for monetary loss resulting from injury, for example, if the victim is unable to go to work. Expenses for such things as medical bills, counselling, prescription drugs, eyeglasses or clothing may also be available. For items that have had to be replaced, the victim should be prepared to provide receipts or other proof of expenses claimed. Compensation is not available for pain and suffering, legal fees or property damage.
To apply for compensation, the victim fills out a Victims Compensation Program application form. This is available by contacting the Police, RCMP or online at Compensation for Victims of Crime.
Saskatchewan has a law that provides additional ways to help fight violence in personal relationships. This law applies to...
- people who live together or have lived together as a couple or a family
- people who live together or have lived together in an intimate relationship
- parents of a child regardless of whether they are married and/or have ever lived together
- people in an ongoing caregiving relationship whether they have lived together or not
Interpersonal violence includes physical harm or damage to property, threats that cause a reasonable fear of physical harm or damage to property, forced confinement, sexual abuse, harassment, and depriving someone of necessities such as food and shelter.
This law creates three ways to deal with interpersonal violence - emergency intervention orders, victim's assistance orders and warrants permitting entry.
Emergency Intervention Order
In an emergency, victims of interpersonal violence can apply to a special Justice of the Peace for help at any time of the day or night. Police officers, mobile crisis workers and victim services coordinators can help victims do this. In an emergency the Justice of the Peace can make an order without waiting for the case to go to court and without the accused being notified of the hearing or being present. The Justice of the Peace must be satisfied that there has been interpersonal violence and that the matter cannot wait for a court hearing.
In deciding whether to make an order the Justice of the Peace will consider...
- the kind of violence
- any history of violence in the relationship
- if there is immediate danger to a person or property
- the best interests of the victim and any children
- whether a child has been exposed to violence
- any recent change in circumstances of the accused (such as the loss of a job or getting out of jail)
- any controlling behaviour of the accused
- if the victim is particularly vulnerable in some way
An emergency intervention order can include an order that...
- the victim have exclusive occupation of the home
- a police officer remove the accused from the home
- a police officer supervise while the accused or the victim takes personal belongings from the home
- the accused not contact the victim and other family members
- the accused not be near specified places where the victim or the family regularly go, such as their school or workplace
After a Justice of the Peace grants an emergency intervention order, the accused must be given a copy of the order. The order does not take effect against that person until they receive a copy of the order.
Because emergency intervention orders are designed for an emergency, they must be confirmed afterwards by a judge.
The judge must look over the order and the supporting papers within three working days of getting the documents from the Justice of the Peace. If the judge is not satisfied that there was evidence for the order, the judge can schedule a rehearing of the matter. The accused or the victim can ask a judge to review the order at any time.
Victim's Assistance Order
A victim's assistance order is similar to an emergency intervention order, but is designed to be used in non-emergency situations. This type of application is made by the victim to a judge at the Court of Queen's Bench. When making a victim's assistance order a judge can include any of the orders that may be made under an emergency intervention order. A victim's assistance order can also include an order...
- that the accused pay the victim compensation for things like medical or dental expenses, moving expenses or legal fees
- that either party have temporary possession of things like a car, children's clothing, identification, keys or passwords
- preventing the accused from selling or damaging any property that the victim has an interest in
- recommending that the accused receive counselling
- that the accused post a bond to ensure that they comply with the terms of any order
Warrant Permitting Entry
A Justice of the Peace may grant a warrant to a police officer, or other designated person, to enter a place where there are reasonable grounds to believe a victim of interpersonal violence will be found. The warrant may be granted only after the potential abuser has refused access to helpers or to the police to check on a person who may be a victim of interpersonal violence. It gives the holder of the warrant the right to go into the home. They may assist or examine the possible victim and may remove the victim from the home, if necessary.
When a couple or the parents of a child are no longer together there are a number of issues that must be resolved. Family law deals with issues such as separation, divorce, custody, access, child support, spousal support, dividing family property and exclusive possession of the family home.
Some family law remedies are only available to spouses or married people. To apply for spousal support you must be married or have lived together for two years or more as a couple or have a child together and have lived in a relationship of some permanence. To apply to have family property divided or exclusive possession of the family home you must be married or have lived together as a couple for two years or more.
An overview of family law is provided below. For more detailed information see Family Law Saskatchewan, which also has information and assistance for people needing to make family law court applications, or the PLEA publication When Couples Separate, which can be ordered free-of-charge from PLEA.
Spouses and partners can leave a relationship whenever they want - there is no legal process that is required for a couple to separate. Once a couple has begun living apart they will be considered "separated."
Once a couple is no longer together they need to resolve the issues that come with the break-up of the relationship. This can be done by agreement. The terms could include how their property will be divided, how much support will be paid to whom, and who will have custody of the children. An agreement to divide property must be in writing and both spouses must get independent legal advice.
Written separation agreements are useful for tax purposes and provide a guideline as to what is expected of each party. They also allow the couple to decide for themselves how to resolve issues and may be less time-consuming and expensive than going to court. A written agreement about child or spousal support can be registered with the court and enforced the same way as a court order can be enforced. On the other hand, you cannot ask the court for help enforcing a custody or access agreement. Before you do this you would need to get a court order for custody or access.
It is important that both parties understand what they are signing, the alternatives that are open to them and the possible advantages and disadvantages of resolving issues by agreement or by going to court. Legal advice is particularly important in abusive relationships where the parties may not have equal bargaining power.
Ending a Marriage
Divorce legally ends a marriage. It leaves the parties free to marry again. Divorce proceedings can sometimes be very complicated, especially if the divorce is contested or if the parties cannot come to an agreement over matters of child and spousal support, or custody of the children. It is a good idea for people considering divorce to consult a lawyer about handling their case.
Grounds for Divorce
A divorce can only be granted by a court order. A court may grant a divorce if there is a breakdown of the marriage. Marriage breakdown can be established when...
- the parties have lived apart from each other for one year
- one of the parties has committed adultery (had sexual intercourse with someone else) and has not been forgiven by the other party
- one of the parties has subjected the other to cruel treatment, including physical and mental abuse, of such a nature that it is intolerable to continue to live with them (see the section titled The Behaviour).
Either party can begin formal divorce proceedings when the parties no longer live together as a couple. Although divorce proceedings can begin as soon as the couple stops living together, generally the divorce will not be finalized until they have lived apart for at least one year. In the case where adultery or cruelty is established, the divorce may be finalized sooner.
A brief attempt at reconciliation or getting back together during the year will not prevent the couple from divorcing if the reconciliation is unsuccessful. If the couple wants to try to mend their relationship, they can live together for a period of up to 90 days without affecting their divorce action.
A divorce may be granted together with an order dealing with custody, access, support and division of property. When the divorce is granted, the court will issue a judgment for divorce. The divorce becomes final 31 days after the judgment is issued. The purpose of the waiting period is to allow time for either party to appeal the judgment.
Ending Other Spousal Relationships
Other than living apart, unmarried spouses do not need to go through any legal procedure to end their relationship. Unmarried spouses generally have 24 months after they separate to claim an interest or benefit stemming from that relationship. Individuals who have lived together as spouses for a period of time should check the specific legislation or benefit program to determine if they can make a claim and the time frame within which claims must be made.
Family law can be used to get protection similar to that provided by a peace bond. It is called a restraining order.
A court can issue a restraining order that places limitations on how a person can contact their spouse or partner. The court may grant a restraining order if it is satisfied that someone's safety is threatened. It may forbid an abuser from approaching their spouse or partner in any way, either directly or indirectly.
Once a restraining order is in place, the police can enforce it. If the abuser does not obey the order, they can be fined or put in jail.
Getting Back into the House
If you are married or have lived with your partner as a spouse for two years or more you can apply to court for an order for exclusive possession of the family home. Exclusive possession means that you can live in the family home without your spouse. If the court gives you exclusive possession of the family home your spouse will be required to leave the home. The court may also prohibit your spouse from entering or visiting the home if you request this. They may also be ordered to pay the rent or mortgage.
Possession means who will live in the home, not who will own it. It is possible for the court to award one spouse sole or partial ownership of the home and the other spouse the right to possession. Right of ownership may, however, be suspended to prevent the sale of the family home.
The court will always try to take into account the interests of the children and will try to place them in a situation that is as close to normal as possible. Other factors considered by the court are the availability of other accommodation and the financial situation of both spouses.
If you have an order for exclusive possession of the family home you should keep a copy of the order with you if you want the police to enforce it. The police must be able to examine the order to determine whether it has been violated.
If you invite your spouse onto the premises, you may be responsible for the order being breached and the police will be hesitant to enforce it. As well, a court can vary the order if satisfied that there has been a material change in circumstances.
If an abused spouse does not want to apply for an exclusive possession order or remain in the family home, they will likely want to return to the house briefly to get their own personal belongings. This may not be a problem if their spouse consents. However, without that permission they may wish to consult a lawyer and make an application to the courts to allow and facilitate entry (see the information under the section titled The Victims of Interpersonal Violence Act).
Division of Property
The laws concerning the division of family property only apply to married couples or spouses who have lived together as spouses for at least two years. Under The Family Property Act, when spouses separate, the court starts with the assumption that each spouse has an equal share in the family assets and that the property will be divided equally. However, exemptions may apply to some property such as...
- property owned by either spouse before they became spouses
- property given to or inherited by either spouse before they became spouses
- property obtained by either spouse after the spousal relationship ends
There are special rules that apply to a family home. The above exemptions do not apply to the family home. Saskatchewan law directs the courts to equally divide the family home except where it would be unfair because of an unusual situation or unfair to a parent who has custody of the children.
For couples that are not legally recognized as spouses, there is no right to each other's property, unless they can prove that they have an interest in it. For example, if one partner is the sole owner of the common residence, the other partner would have to prove an interest by showing such things as having...
- paid for part of the purchase price, or contributed to the purchase in some other manner
- contributed to the improvement of the property
This sort of claim is called a trust action.
Disposing of Assets
If a person thinks their spouse will sell or give away some of the family property, they can apply to the court for a restraining order to stop their spouse from doing this. If a spouse has already sold or given away some of the property, the court may order that it be returned for division or consider its value when dividing the remaining property.
Both parents have the right to raise and care for their children. If they are living together, they share this responsibility. When parents separate the children have to be shared in some way. When the parents are no longer together decisions need to be made about where the children will live, when the other parent will see them, how decisions about the children will be made and how the children will be supported.
Deciding Custody and Access
A custody/access order will determine where the children will live, when the other parent will see them and how decisions about the children will be made. Although it can take some time to get a final order, a court will usually grant an interim custody/access order which will be in effect until the matter is finally resolved. The court decides custody and access based on the best interests of the children. To decide what is in the best interest of a child the court looks at such things as...
- a child's relationship with both parents
- which parent is best suited to have custody
- any special needs of the child and which parent can best deal with those needs
- long-term plans of each parent for the care and education of the child
- the wishes of the child, depending on the child's maturity
The court can decide that the children should live part of the time with each parent, or that the children will live with one parent most of the time. If the court decides that the children will live with one parent it usually gives visiting or access rights to the other parent. The court is of the view that it is the right of every child to see and associate with both parents. Access rights are denied only in exceptional circumstances, such as where it would likely cause the child physical or emotional harm.
Leaving Children Behind at the Time of Crisis
A parent will not lose parental rights by leaving children behind at a point of crisis, but it is essential to contact a lawyer and receive legal advice about custody and access without delay. The best interests of the children will be the guiding principle considered by courts in determining these matters.
In almost all cases, the court will order child support. Child support orders are based on the Child Support Guidelines. The Guidelines have tables that set out a fixed amount of support per child depending on the paying parent's income. Generally the parent that the children live with most of the time receives child support from the other parent. Additional amounts can be ordered if there are special expenses for a child, such as health care, child care, education or extracurricular activities. It can also be reduced if paying that level of child support would cause undue hardship.
In addition to child support payments, a spouse may be ordered to help support their spouse.
When deciding whether a spousal support order is appropriate, and if so, determining the amount, the court will consider factors such as...
- the means, needs and other circumstances of the spouses
- how long the spouses have lived together
- what role each spouse had in running the household
- any court order or agreement regarding maintenance of the spouse or children
- the effect the spousal relationship or its breakdown has had on each spouse's financial position
- the ability of each spouse to be able to support himself or herself
In deciding on spousal support, the court does not consider any misconduct of the spouses in relation to the spousal relationship, such as cruelty or adultery, unless it has impacted the other spouse financially.
Getting Legal Help
Family law can be very complicated, especially in matters of property, custody and divorce. Individuals leaving an abusive relationship may be particularly vulnerable. A lawyer can help individuals to better understand their rights and the legal options that are available.
An individual searching for a lawyer will often ask friends to recommend one. Another method often used is to make a few phone calls to firms listed in the yellow pages, inquiring whether they are experienced in family law and what their fees are. Many lawyers offer free or low cost initial consultations.
Legal Aid lawyers are available to act for eligible people who cannot afford to hire a lawyer and who need assistance in the areas of criminal law and family law. Individuals will generally be eligible if...
- they are receiving Social Assistance
- they are earning incomes that are not above the Social Assistance level
- legal costs are so great that their income would be reduced to the Social Assistance level
To contact Legal Aid Saskatchewan, look under the Government of Saskatchewan blue pages in your telephone directory or in the yellow pages under "Lawyers."
If you cannot afford a lawyer and you do not qualify for Legal Aid you may be able to get legal help through Pro Bono Law Saskatchewan. You can call them Toll Free at 1-855-833-7257.
If you must prepare and file an application to family court without the assistance of a lawyer Family Law Saskatchewan can assist with providing background information and a Form Wizard that can guide you through the process.
Abuse Information and Programs
Interpersonal Violence and Abuse Unit
Provide support to victims of violence and information about family violence and available programming throughout the province.
Victims Services Regina
Information about Saskatchewan programs for victims of intimate partner violence.
Victims Services Regina
Information about community-based programs that help Aboriginal families living in urban areas deal with abuse and violence.
Victims Services Regina
Information about Saskatchewan programs to assist children and youth who have witnessed or experienced interpersonal violence or abuse.
Information about family violence, including a referral and directory service, fact sheets, research findings, statistics and much more.
PATHS is a non-profit organization that provides services to abused women and children, including fact sheets, pamphlets, posters and resource materials.
Provincial organization dedicated to supporting partnerships with individuals, communities, organizations and governments to address issues of personal and relationship violence.ISBN/ISSN number: 1924-0570