BY VALERIE DYE
Domestic abuse is very common in Canada among married and common law couples. Spouses are not the only ones affected by abuse, as children are also often victims of abuse. It is important for the abused spouse to be aware of the remedies he or she can obtain from the court when a partner has a history of abuse. The remedy awarded by the court may depend on the frequency and extent of the abuse. In that regard, one instance of abuse may be treated differently from the situation where abuse is constant, ongoing and severe.
One of the most common remedies for domestic abuse is for the abused partner to be granted exclusive possession of the matrimonial home. Although section 19 of the Family Law Act of Ontario states that both spouses have an equal right to possession of the matrimonial home, section 24 of that Act states that upon application, the court may make an order granting exclusive possession of the home to one spouse. The order granted by the court may be for a limited duration or for an extended period, depending on the circumstances of the case. Section 24 (3) (f) of the Act states that, in determining whether or not to make an order for exclusive possession the court will consider any abuse that has been committed by a spouse against another spouse or against the children.
Sections 19 and 24 are contained in Part II of the Family Law Act which relates only to married couples. Common law spouses are therefore not entitled to the same rights regarding possession and may be denied exclusive possession even in the case of domestic abuse. In the case of Gonzalez v Trobradovic ONSC 2014, the common law spouse Mr. Trobradovic initially obtained exclusive possession of a home owned by the other spouse Ms. Gonzalez who was accused of domestic abuse against him. Ms. Gonzalez subsequently obtained a writ of possession against her common law spouse and he was forced to relinquish exclusive possession and vacate the home. Ms. Gonzalez was able to obtain exclusive possession of her home despite being accused of domestic abuse. The court based its decision on the fact that Mr. Trobradovic did not legally own the home and further, he could not claim an interest in the home as he was unable to establish that he had contributed to the acquisition and the maintenance of the home.
Another remedy for domestic abuse is that of a restraining order. Even where exclusive possession is granted a restraining order should also be sought in order to ensure that the perpetrator does not visit or go near the matrimonial home. Section 46 of the Family Law Act provides that a restraining order may be granted against a spouse or former spouse or against anyone else who is cohabiting or has cohabited with the applicant. The court may grant either an interim restraining order or a final restraining order if it is determined that the applicant has reasonable grounds to fear for his or her safety or for the safety of a child or children. It is important to note the requirement that there must be reasonable grounds for the fear, as spouses often believe that they can simply seek and obtain a restraining order without adequately establishing a fear for their safety. Furthermore, an applicant who maintains contact and communication with an abuser would find it difficult to establish that he or she has a fear for his or her safety. In that regard, a restraining order may not be granted.
