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My ex has a protective order against me, but if my ex asks me to come over, I can ignore the Order.
Even if you think that the other party has agreed to breach the Order, do not breach the protective order. It does not matter if the other person agreed, or even contacted you first: you will be the one who suffers the consequences. There can be very serious consequences for breaching a protective order, including fines and jail time.Related Information Pages:Last Reviewed: October 2015
I have sole guardianship, so I can name whomever I want in my will to get guardianship of my child if I die.
That is not entirely true. In a Will, you (the “Testator”) can name someone who you would like to have become a guardian of your child when you die. However, the naming of a guardian in a Will is not binding on the Court. This is because of something called the parens patriae jurisdiction.
Parens patriae is a Latin phrase meaning "parent of the nation." It refers to the power of the court to intervene against a parent or guardian, and to act as the parent of any child in need of aid or protection. It is this concept that allows child welfare authorities to take a child from his or her home and put that child into the protection of the government (in foster care).
As a result, someone else can still apply to be the guardian of your child, and only the court has the final say. Naming a guardian in a Will, however, does ensure that the court will hear your opinion.Related Information Pages:
Last Reviewed: October 2015
- Becoming the Guardian of a Child
- Custody & Access under the Divorce Act (married parents)
- Guardianship & Parenting under the Family Law Act (non-married & married parents)
- Having a Child: Legal Considerations & Government Benefits for Parents and Guardians
- Planning for Death: Wills, Estates, and Funeral Arrangements
A child can decide who he or she wants to live with at age 12.
There is no magic age when a child is old enough to decide which parent they want to live with. Many courts begin considering children’s opinions by 12 years of age, but the weight given to the wishes of the child depends on various things, including the child’s age and maturity, and the specifics of the case.
If you are trying to come to an agreement on your own, you are free to incorporate the views of the child into your agreement. If you are in court, the judge may listen to the wishes of a child, if the judge feels that the child is mature enough to give his or her opinion. In general, the older the child is, the more weight the judge will put on the child's wishes. However, even if a child does provide an opinion, judges must make their decisions based on what is in the “best interests of the child.”
If you think your child needs their own lawyer to represent them and to advocate for their best interests, the Children’s Legal and Educational Resource Centre may be able to help for free, if your child is under 19 years old.Related Information Pages:Last Reviewed: September 2016
I have conditional permanent resident status, so I have to continue living with my abusive sponsor until the conditions are removed or I will be deported.
As of April 18, 2017, this rule no longer applies to sponsored immigrants to Canada.
- Anyone who has been considered a “conditional permanent resident” is no longer subject to the conditions.
- If you were being investigated for not following this rule after separating from your sponsor, the investigation will stop.
Abuse is not acceptable in Canada. You can leave an abusive situation at any time, regardless of your legal status.
When applying for the exception, you will have to prove the abuse or neglect. You will also have to prove that you lived in a genuine marriage-like relationship with your sponsor until the relationship ended because of the abuse or neglect. There is no guarantee that your application will be successful.Related Information Pages:Last Reviewed: May 2017
I shouldn’t practice my safety plan with my children because it will just scare them more.
It is important to practice your safety plan regularly to make sure that you understand how it works. If you have children, practicing can also be helpful for them to know what to do.
It is also a good idea to practice your safety plan in different ways, because you never know what might happen. Think of things that might go wrong. For example, maybe you won’t have access to the car when you need to leave. You can practice the safety plan using the bus instead. Or, maybe you will have left your cell phone somewhere, or the battery will have died. You could check where there is a payphone to call for help instead. It is important that you and your children know:
- where bus stops and payphones are and how to use them;
- how to get to your safe places; and
- who you can trust, and how to call them.
You know your children best. You know what they can and cannot handle or keep to themselves. Therefore, in addition to getting help from professionals, listen to your intuition. Follow your instincts about the safety plan and discussion based on your relationship with your children.
For general family violence information and referrals to supports and services in your area, contact the Family Violence Info Line. Their toll-free phone number is 310-1818, and they are available 24 hours a day, 7 days a week, in more than 170 languages.Related Information Pages:Last Reviewed: May 2017
A safety plan will only put me and my children in more danger.
If you are in an abusive relationship, making a safety plan is a good idea. It can help you to prepare yourself to leave, and to protect you from further danger. By having a safety plan, you will have what you need to stay as safe as possible.
It is important to make sure that the children know and understand your safety plan as well. However, dealing with children can be tricky and complicated. For example, you won’t want them to accidentally tell the abusive parent about the safety planning. Some organizations suggest using neutral phrases. You could say, “we want to prepare for an emergency” rather than “we are preparing for what to do if Dad becomes violent.”
Many organizations suggest going to professionals who have experience safety planning with children. They can help with the safety planning process. They will have ideas about how to bring it up with the children. And they can guide you in actually coming up with a safety plan.
One reason why some people worry about making a safety plan is because they are afraid that the abuser will find it. The abuser might become more angry and dangerous if they find out that the victim is planning to leave. You may feel that there is no safe place inside your home to hide your safety plan. Maybe you could leave it with someone you trust, such as a family member, friend, or coworker. This person can keep it in a safe place for you. Whenever you need to review your safety plan, you will know where to go to look it over.
For more information about services and support, you can contact the Family Violence Info Line. Their toll-free phone number is 310-1818, and they are available 24 hours a day, 7 days a week, in more than 170 languages.Last Reviewed: May 2017
I can’t leave my abusive situation because I can’t afford to break my lease.
Alberta’s Residential Tenancies Act has recently changed. Now victims of abuse are allowed to break their lease early, without a financial penalty. To do this, you must give your landlord a certificate from the Alberta government’s Safer Spaces Processing Centre. The Safer Spaces Processing Centre can give you this certificate if you give them one of the following.
- a copy of a protective order from a court (such as an Emergency Protection Order, Queen’s Bench Protection Order, restraining order, or peace bond); or
- a letter from a “certified professional” confirming that you or your children are in danger.
See the Safer Spaces webpage for more information about getting a certificate.Related Information Pages:Last Reviewed: May 2017
If I don’t speak English, then no one can help me with my legal problems.
Many communities across Alberta have options for providing legal information and legal help. Some organizations specifically serve the immigrant community, and can offer information and help in many different languages. For more information, see the Alberta Association of Immigrant Serving Agencies website.Related Information Pages:Last Reviewed: November 2016
Spanking a child is against the law.
It depends what you mean by spanking.
There is no law that says that “spanking” a child is illegal. But the law does set limits on physical discipline. The law says that you are allowed to use “reasonable force” to discipline a child. This is set out in Section 43 of the Criminal Code of Canada.
The Supreme Court of Canada has set guidelines to describe force that is “reasonable” in disciplining a child between the ages of 2 and 12.
- The impact of the force must be only “transitory and trifling.” This means that the effect must be brief and not serious.
- The force used must not be degrading, inhumane, or harmful.
- The person must not use an object, such as a ruler or belt, when applying the force.
- The person must not hit or slap the child’s head.
- No matter how serious the child’s action or behaviour was, the force must still be reasonable.
- The force must not be used in anger or to get back at the child. It must only be used to help the child learn.
Section 43 can never be a defence against using force on a child under age 2, a child who is suffering from a disability, or a teenager.
If you use force that is not “reasonable” in disciplining your child, you could be charged with an offence under the Criminal Code of Canada. Also, your actions could be considered physical abuse. Child and Family Services may step in to protect your child under the Child, Youth and Family Enhancement Act.Related Information Pages:Last Reviewed: February 2017
My partner was violent toward me, so now we are separated. The court will not give decision-making power or parenting time to a violent person.
Under the Divorce Act, the law assumes at first that both parents have an equal right to custody of their children and that the children generally have the right to spend time with each of the parents. Similarly, under the Family Law Act, the law assumes at first that both parents have guardianship of their children and that those children generally have the right to spend time with each of the parents. Also, the Alberta court system places a high value on contact with both parents.
As a result, it is actually quite rare for a parent not to have contact with the children (even if the parent is in jail). Judges will only make "no contact" orders in extreme cases. These are generally cases where the judge believes that a child or parent is in danger, or that a parent may try to abduct a child. In most cases, if a judge is worried about potential harm to a child, he or she will order supervised parenting time rather than no parenting time at all.
The behaviour of your former partner will not be considered by the judge unless the behaviour relates to his or her ability to parent.Related Information Pages:
Last Reviewed: March 2017
- Custody & Access under the Divorce Act (married parents)
- Family Breakdown & Criminal Law
- Family Violence and the Legal Process
- Family Violence: How Criminal & Civil Law Can Help
- Guardianship & Parenting under the Family Law Act (non-married & married parents)
- Immediate Issues for All Separating Couples
- Property Division for Married Spouses
Only physical abuse is wrong.
There are many different kinds of abuse. For many people, when they think of abuse, they think of only the physical kind—the kind that leaves bruises, such as slapping, punching, and biting. However, in addition to physical abuse, there is also verbal abuse (also called “emotional” abuse), and financial abuse. All types of abuse are wrong.Related Information Pages:Last Reviewed: October 2015
If I disagree with a decision Child Protective Services made, I have to go to court to deal with it.
Often, the best solutions are the ones worked out between the parties themselves. As a result, CPS tries to resolve issues cooperatively, respectfully, fairly, and efficiently.
At all stages of child intervention, informal dispute resolution is available. The first step is to talk to the caseworker.
There are also other informal processes in place that may include:
- a discussion with a supervisor, manager, or higher official;
- family group conferencing; and
After attempting any informal dispute resolution, you will be told about the decision, both verbally and in writing (for example, in a letter or e-mail).
If you still want to deal with the matter in a more formal way, you can always do so. For example, you can apply for an internal “Administrative Review” of a CPS decision, or apply to court to appeal a decision.Related Information Pages:Last Reviewed: April 2017
Child Protective Services can’t take my child into government custody without first giving me a chance to fix the issues that put my child at risk.
The Child, Youth and Family Enhancement Act lists several different kinds of “interventions” that can happen when a child is in need of protection.
Some are of these interventions are not very “intrusive.” This means that they do not change the family’s life too much, or for too long.
Other interventions are very intrusive. This means that they can greatly affect a family’s life (including taking a child from the home). Sometimes these interventions are permanent. Some of these interventions may involve court orders. Some may be done by agreement.
People often think that Child Protective Services will always start with the less intrusive interventions first. This is not the case.
The interventions are not a “progression” of options. There is no starting point. When a report is first received, the intervention that is used will depend on the facts of the case. It all depends on how much danger the child is in, and how much protection they need. Decisions are always based on the needs and best interests of the child.
However, the more the guardians address the issues at the start, the better the chance that the interventions will remain less intrusive. Also, a family is more likely to have more intrusive interventions if they are involved in the child protection system more than once. This can be especially true if the pattern repeats itself often.
No matter what the situation, if the need to protect the child is great enough, there may immediately be intrusive interventions.Related Information Pages:Last Reviewed: April 2017
“Going to court” is the same thing as “going to trial.”
Not all matters go to a trial. Many matters may get resolved before trial. Or, even if there is a trial, there may be many steps before the trial. These steps before the trial may also take place in a courtroom. You can think of a trial as being one possible outcome of the court process.
Related Information Pages:Last Reviewed: March 2017
- Many “pre-trial” applications take place in “docket court” or “chambers.” These hearings are held in a courtroom that is open to the public. They are generally shorter and less formal than trials. The orders in these hearings are not usually intended to be the final decision in a matter. However, many parties choose to just accept the orders granted in applications as a permanent solution. They never go to trial and never get a final “judgment.”
- You can go to docket court or chambers to get a “Consent Order” from a judge. At any time, the parties can agree on some or all of the issues between them. In some cases, the parties may want or need to turn that agreement into a court order. This is called a Consent Order.
What happens in someone’s home is their business, even if I think that it’s wrong.
Some people think that abuse that takes place in someone’s home is their own private matter. However, in Canada, there are criminal laws against abuse. For example, the Criminal Code of Canada protects against certain types of abuse such as assault, sexual assault, criminal harassment (stalking), and uttering threats.Related Information Pages:Last Reviewed: October 2015