Filing for Divorce in an Abusive Relationship in BC

Divorce is rarely simple, but filing for divorce in an abusive relationship in British Columbia often presents some additional complexities for spouses.

Psychological, physical, or sexual abuse affects more relationships than most people imagine, with around 80 percent of cases of intimate partner violence experienced by females. Abuse of this kind is often a compelling reason to file for divorce.

Understanding your legal rights and the steps you need to take to protect yourself and to file for divorce are essential to the process of moving on from an abusive relationship.

Legal rights of family violence victims in BC

Victims of spousal abuse have help available to them and do not have to suffer in silence. However, within the emotional confines of a long relationship, it can sometimes be hard to determine what constitutes abuse and what legal rights are available to remedy the situation.

The definition of “family violence” is broad in BC, covering non-physical forms of violence, such as emotional or psychological abuse, as well as physical abuse. This may include intimidation, harassment, coercion, threats, or demeaning remarks.

BC’s Family Law Act allows victims of family violence to request protection orders to be issued. Domestic abuse is also a factor that will be considered when parenting matters are decided during relationship breakdowns and divorces.

For instance, when assessing the best interests of a child in a custody case, the courts must consider “the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member.”

The federal Divorce Act also addresses family violence and will consider the following when determining parenting arrangements:

• “The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child”, and
• “Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.”

This is important for spousal abuse victims to bear in mind, as the safety and well-being of the children is often a major consideration when deciding how to address an abusive relationship.

Immediate protection from abuse

Before considering divorce or parenting matters post-divorce, the most important step is to ensure the safety of yourself and the children.

If you are in immediate danger, call 911 or the local police and, if necessary, seek emergency shelter or local support from domestic violence organizations.

Then, you can apply for a protective order under the Family Law Act to prevent your spouse from contacting or approaching you. How to do this is explained below.

Legal steps to divorce in an abusive relationship in BC

Before taking legal steps to file for divorce, consider that the Divorce Act recognizes the irreconcilable breakdown of a marriage as the sole ground for divorce in Canada. This can be proven by:

• Living separately and apart for at least one year.
• Adultery or cruelty (no waiting period).

Victims of domestic abuse fall into the second category with no waiting period. Here is what you need to do:

• File a Notice of Family Claim for divorce in the BC Supreme Court.
• Include evidence to support claims of cruelty or harm, such as police reports, medical records, and/or witness statements.
• Request that the court makes suitable custody and parenting arrangements while the divorce proceedings progress through the courts (an abusive spouse may be restricted from visiting the children if safety issues are a concern).
• Seek interim orders to address key financial matters, such as spousal support, child support, temporary possession of the family home, and freezing of joint accounts or assets (if applicable).
• Protect your safety and legal rights by consulting with a British Columbia divorce lawyer with experience in domestic abuse cases.

Protective orders available during BC divorces

Family protection orders protect family members from violence or the risk of violence from another family member. The types of protective orders available during divorces include:

• Protective orders: civil orders that limit contact, distance, or behavior to protect a person from abuse or harassment.
• Exclusive possession of the matrimonial home orders: one party is granted exclusive occupation of the family residence, sometimes with the other party required to leave or be restricted from entering. These orders may be issued if continuing to share the home is impractical or unsafe, particularly if there are children.
• Financial restraining orders: these protect financial interests during proceedings, such as preventing the disposal of assets, controlling access to funds, or otherwise safeguarding financial resources.

How to get a protective order in BC

Protective orders are available under the Family Law Act. Victims usually apply for these orders through the BC Provincial Court, although the BC Supreme Court can also issue such orders.

To apply in the BC Provincial Court, complete the Preparing an Application About a Protection Order form and await a hearing date. Filing for a protective order with the Provincial Court is free but fees apply (and extra documentation may be required) when applying with the Supreme Court.

Protective orders in British Columbia expire after one year unless the court states otherwise. At expiration, you can reapply for the order if ongoing protection is still required.

Other legal steps to protect yourself from family violence in BC

Protective orders are one of the main legal protections available to abuse victims in British Columbia. However, there are other ways to protect yourself legally from family violence.

For instance, conduct orders can protect an abuse victim if the legal test for a protection order has not been met. These may impose restrictions on communications between the parties and prevent conflicts or threats from escalating during family law proceedings.

Helplines and support services are available with resources for abuse victims. These provide
assistance with housing, counselling, and managing an abusive situation. A seasoned family lawyer can also offer legal assistance if the well-being or safety of your family is compromised. If you are in the Langley area of British Columbia and need legal assistance with filing for divorce, DSG Family Law offers a initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.