While the fact that an accused person is a "battered woman" does not automatically entitle her to an acquittal, it may be relevant to existing affirmative defenses. In the 1990 decision of R. v. Lavallee,^[183] the Supreme Court of Canada recognized that expert evidence about an accused's abuse may be relevant to determining the reasonableness of her belief that killing her abuser was the only way to save her own life (i.e., the defense of self-defense). In particular, the court said that "the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality" (paragraph 52). The court also recognized that, because of the cyclical nature of abuse, a battered spouse may be able to accurately predict the onset of violence even before she is struck. Finally, the court accepted that, for a variety of reasons, battered spouses may not feel able to leave their abusers. Expert evidence about these realities is relevant for determining whether the accused had a reasonable apprehension of death and whether the accused felt incapable of escape, which are necessary factors for self-defense to apply.

In later cases, courts have also recognized that this type of expert evidence may be relevant to other defenses, such as duress.

Yes, there are a number of orders that courts can issue to protect victims of domestic violence and many of these can include terms requiring the abuser to avoid the victim's workplace. These orders include:

• Criminal Code Section 810 peace bond — See Section 4.1 regarding civil protection orders.
• Common law peace bond — See Section 4.1 regarding civil protection orders.
• Bail conditions and variations — While an accused is awaiting a resolution of their criminal case, the court may allow them to be released from custody, on certain conditions that can be varied upon request by the Crown or defense counsel. One of the conditions that the court can impose is to refrain from attending certain locations (e.g., the victim's home, school and workplace). Bail conditions will remain in place until the matter is resolved or the conditions are varied by the court.
• Provincial civil protection order (or emergency protection order) — See Section 4.1 regarding civil protection orders.
• Provincial statutory or common-law restraining order — See Section 4.1 regarding civil protection orders.
• Trespass notice/order — Parties, including employers, can issue trespass notices under provincial or territorial property protection legislation (e.g., Ontario's Trespass to Property Act). A trespass notice is issued by a property owner (or person authorized by the property owner) to notify the recipient that they can no longer enter the property. The notice will remain in place until it is revoked.

In Canada, all employment relationships are contractual and cannot be terminated by the employer unless the employer has "just cause" for dismissal (or, in Quebec, "serious reason") or the employer provides reasonable notice of termination (or pay in lieu of such notice). Note that, in certain provinces, even if an employer has "just cause," it may still be required to provide a minimum amount of statutory payments and benefits when dismissing an employee.

Whether a particular situation rises to the level of "just cause" for dismissal is fact-specific. Relevant factors include, but are not limited to the following:

• the employee's position, including their duties and responsibilities, whether they are a "public face" of the company, etc.
• the employee's prior disciplinary history
• the seriousness of the misconduct
• whether the victim is also an employee in the workplace
• whether the misconduct occurs in the workplace

Most Canadian jurisdictions have amended their employment standards laws to specifically allow employees to take a job-protected leave of absence if they (and, in some cases, specified family members) have been subject to domestic or sexual violence:

• British Columbia

Up to 10 individual days and 15 weeks of leave per calendar year are available if the employee, the employee's dependent child or a protected/dependent adult for whom the employee is a caregiver, is subjected to domestic violence or sexual violence (as defined in the Employment Standards Act) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. Up to five days of the leave are paid; the remainder is unpaid.

• Alberta

Up to 10 days of unpaid leave per calendar year are available if the employee, the employee's dependent child or a protected/dependent adult for whom the employee is a caregiver, is subjected to domestic violence (as defined in the Employment Standards Code) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least 90 days of continuous service with the employer.

• Saskatchewan

Up to 10 individual days of leave per a 52-week period are available if the employee, the employee's dependent child or a protected/dependent adult for whom the employee is a caregiver, is subjected to interpersonal violence (as defined in The Victims of Interpersonal Violence Act) or sexual violence, and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. Up to five days of the leave are paid; the remainder is unpaid.

• Manitoba

Up to 10 individual days and 17 weeks of leave per a 52-week period are available if the employee, the employee's dependent child or a protected/dependent adult for whom the employee is a caregiver, is subjected to interpersonal violence (as defined in The Employment Standards Code) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least 90 days of continuous service with the employer. Up to five days of the leave are paid; the remainder is unpaid.

• Ontario

Up to 10 individual days and 15 weeks of leave per calendar year are available if the employee or the employee's child is subjected to domestic or sexual violence (as defined in the Employment Standards Act, 2000) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least 13 weeks of continuous service with the employer. Up to five days of the leave are paid; the remainder is unpaid.

• Quebec

While Quebec's domestic or sexual violence leave only applies to situations where the employee is the victim, an employee may take up to 10 individual days of job-protected leave to fulfill obligations relating to the care, health or education of the employee's child or the child of the employee's spouse, or because of the state of health of a relative or a person for whom the employee acts as a caregiver. Up to two days of the leave are paid; the remainder is unpaid.

• New Brunswick

Up to 10 individual days and 16 weeks of leave per calendar year are available if the employee or the employee's child is subjected to domestic violence, intimate-partner violence or sexual violence and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least 90 days of continuous service with the employer. Up to five days of the leave are paid; the remainder is unpaid.

• Nova Scotia

Up to 10 individual days and 16 weeks of leave per calendar year are available if the employee or the employee's child is subjected to domestic violence (as defined in the Labour Standards Code) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least three months of continuous service with the employer. Up to three days of the leave are paid; the remainder is unpaid.

• Prince Edward Island

Up to 10 individual days of leave per 12-month period are available if the employee, the employee's dependent child or a protected/dependent adult for whom the employee is a caregiver, is subjected to domestic violence, intimate-partner violence or sexual violence (as defined in the regulations to the Employment Standards Act) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least three months of continuous service with the employer. Up to three days of the leave are paid; the remainder is unpaid.

• Newfoundland and Labrador

Up to 10 individual days of leave per year are available if the employee or a person for whom the employee is a guardian or caregiver is subjected to family violence (as defined in the Labour Standards Act) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for this leave, employees must have at least 30 days of continuous service with the employer. Up to three days of the leave are paid; the remainder is unpaid.

• Northwest Territories

Up to 10 individual days and 15 weeks of leave per calendar year are available if the employee or the employee's child is subjected to family violence (as defined in the Protection Against Family Violence Act) and time away from work is required for specific purposes, including seeking medical attention, obtaining services from a victim services organization, obtaining counseling, relocating or seeking legal or law enforcement assistance. To be eligible for unpaid leave, employees must have at least one month of continuous service with the employer. Up to five days of the leave are paid if the employee has at least three months of continuous service; the remainder is unpaid.

• Federally-regulated employers

Although not extensive, there are some protections in place to prevent abusers who are citizens or permanent residents of Canada from using immigration laws^[184] to perpetrate domestic violence against their spouse, based on the type of sponsorship application: (i) applications made outside Canada; and (ii) and applications made in Canada.

Applications made outside Canada

Sponsorship applications made from outside Canada will result in the sponsored spouse being granted permanent resident status before arriving in Canada; thus preventing sponsors from using immigration laws to perpetrate domestic violence against their spouses.

This current policy is a direct result of the abolishment of a prior policy. In April 2017, the government of Canada eliminated conditional permanent residence,^[185] as it disproportionally put sponsored women at an increased risk of violence and abuse from their sponsor. Under this previous policy, sponsored spouses who had been in a relationship for less than two years with their sponsors or who had no children in common at the time of the sponsorship application were subject to a period of conditional permanent residence of two years. During these two years, the sponsored spouse was required to remain in a conjugal relationship and cohabite with their sponsor, or their permanent residence status could be revoked with the potential for deportation.

Applications made in Canada

In the case of application made in Canada (i.e., after arriving in Canada), a sponsor may withdraw their sponsorship at any moment prior to the granting of permanent resident status, which has the unintended effect of allowing sponsors to use immigration laws to perpetrate domestic violence against their spouses, as there are limited alternative options for a sponsored spouse to secure permanent resident status. However, in such cases, sponsored spouses may seek: (i) a refugee claim where eligible;^[186] (ii) permanent resident status through a humanitarian and compassionate application;^[187] or, notably, (iii) a family violence temporary resident permit.

Under the newly available family violence temporary resident permit (TRP), a sponsored spouse may apply for a temporary resident permit, which typically lasts six months (but which may be extended). The TRP is intended for cases of domestic violence and is subject to the following eligibility requirements:

• The sponsored spouse is physically located in Canada and experiencing abuse, including physical, sexual, psychological or financial abuse or neglect, from their spouse or common-law partner while in Canada.
• The sponsored spouse is seeking permanent resident status that is contingent on remaining in a genuine relationship in which there is abuse and if the relationship with the abusive spouse or common-law partner is critical for the continuation of the individual's status in Canada.

Canada's main immigration law is the IRPA.^[188] Under the IRPA, individuals seeking protection in Canada may be approved as a "convention refugee" or a "person in need of protection."

A convention refugee is an individual who meets the criteria set out in the UN's 1951 Convention Relating to the Status of Refugees, namely, a person who:

• by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion
• is outside their country or countries of nationality and is unable or, because of their fear, unwilling to avail themselves of those countries' protection
• is outside their country of former habitual residence (if they do not have a country of nationality) and is unable or, because of their fear, unwilling to return to that country

A "person in need of protection" is a person in Canada whose return to their country of nationality or former habitual residence would result in them being subjected to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment. For the "risk" criteria to apply the following conditions must be met:

• the person must be unable or, because of the risk, unwilling to avail themselves of the country's protection
• the risk must not be faced generally by other individuals in or from that country
• the risk must be faced by the person in every part of that country
• the risk must not be inherent or incidental to lawful sanctions
• the risk must not be caused by the country's inability to provide adequate health or medical care

Canada's Immigration and Refugee Board, and its courts, have long recognized that being a victim of domestic violence can constitute "membership in a particular social group" for the purposes of a convention refugee determination. However, claimants must still meet the other criteria for convention refugee status, including being able to show their fear is well-founded, that they cannot seek protection in their home country (which presents a significant challenge if the claimant's country of origin has a functioning democracy), and that they sought asylum at the first available opportunity (which presents a significant challenge to claimants who may have passed through other countries before reaching Canada).^[189]

In 2004, the Canadian and US governments entered into a Safe Third Country Agreement under which claimants who entered Canada from the US and sought refugee protection could be returned to the US unless they could prove that a specific exemption applied. On 22 July 2020, the federal court declared the Safe Third Country Agreement unconstitutional, but suspended its decision for six months to allow the federal government an opportunity to respond to the decision, including by passing new legislation.^[190] The Canadian government appealed the decision. The appeal was heard by the federal court of appeal on 23 October 2020. A decision is pending.

Where the abuser is in active military service, a victim of family violence can seek help through the local military police (MP) detective or the local Military Family Resource Centre. Military chain-of-command has a duty to react as per DAOD 5044-4.^[192]

There are two options for obtaining a restraining order when an abuser is in active military service. The victim can pursue either or both of these options. The chain-of-command and MPs usually first seek a peace bond and may add a direct order to complement it, if needed, for example, to protect the victim's workspace, when she/he works on the base either in the military or as a civilian Department of National Defence employee.

(a) Obtain a direct order

The commanding officer can issue a direct order to the abuser based on DAOD 5044-4. If the person disobeys this direct order, then the abuser could be charged with disobedience of a lawful command pursuant to Section 83 of the National Defence Act, R.S.C., 1985, c. N-5.^[193] The benefit of a direct order is that it is relatively easy and quick to obtain and can be flexible to adjust to circumstances (based on the MP report, a local legal officer provides legal advice to the commanding officer who issues the order). The downside of a direct order is that although the Supreme Court of Canada in R v. Moriarity^[194] (confirmed in R v. Stillman^[195]) that the Military Code of Service Discipline applies even outside the military context, a commanding officer's jurisdiction outside that context might be challenged.^[196] Another disadvantage is that if the abuser is released from the military, the commanding officer's order becomes obsolete as military jurisdiction cannot be, unless in exceptional circumstances, exercised over civilians.

(b) Criminal Code peace bond

At the national level,^[198]the recent amendments to the Divorce Act, which came into force in March 2021 (explained in Section 1 of this report), requires that primary consideration be given to achieving physical, emotional and psychological safety and security for children and adds "family violence" (as defined in Section 3.2 of this report and which is defined broadly to include psychological and financial abuse and coercive control and indirect exposure of children to violence) as a relevant factor in making orders that allocate parenting time and decision-making responsibility. However, judges are also required to consider providing as much parenting time with each spouse as is consistent with a child's best interests (interpreted widely as a maximum parenting time principle in the previous version of the act) and to consider a parent's willingness to "support the development and maintenance of the child's relationship with the other spouse" (a friendly parent provision).

The following factors must be considered by the court in determining the best interests of the child: a) the child's needs, given the child's age and stage of development, such as the child's need for stability; b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; d) the history of care of the child; e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g) any plans for the child's care; h) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; any family violence and its impact on, among other things: i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and i) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.^[199] According to Professor Koshan:

Disclosures of domestic violence may thus come with the risk that, if they cannot be substantiated, victims will be viewed as unfriendly parents and their own claims to custody may be placed in jeopardy.^[200]

At the provincial and territorial levels, courts have parens patriae jurisdiction, meaning the court has the power and authority to protect those who cannot act on their own behalf. In family law, Canadian courts can take necessary action to protect children. Many jurisdictions stipulate that domestic or family violence is a factor to be considered in assessing the best interests of children and determining parenting, custody and access and/or contact orders, but how this violence is defined varies quite widely across these jurisdictions.^[201]

At the same time, many jurisdictions appear to presume the equal division of parental authority where the parents have cohabited, subject to a court order, agreement or, in some jurisdictions, consent or acquiescence of one parent to the child's residence with the order.^[202] Many also include a maximum contact or friendly parent principle similar to that in the current Divorce Act.^[203]

Only British Columbia explicitly excludes a presumption of equal parenting responsibility and equal time in making court orders. British Columbia also provides that a denial of parenting time or contact with a child is not considered wrongful where the guardian reasonably believed that the child might suffer violence if contact with the child was exercised.^[204]

British Columbia — Assessing Family Violence, Rule 38^[205]

Alberta — Section 33.^[206]

Saskatchewan — Rule 23.5^[207]

Manitoba — Rule 39(2.1)^[208]

Ontario — Rule 20^[209]

Quebec — Section 18 ^[210]

New Brunswick — judges' discretion

Nova Scotia — Rule 18(8)^[211]

Prince Edward Island — Rule 5^[212]

Newfoundland and Labrador — judges appear to have the discretion to decide based on specific considerations such as special needs, etc.

Northwest Territories — judges' discretion based on specific considerations such as special needs, child's normal routine etc.

Nunavut — Rule 7(2)(h)^[213]

Yukon — Rule 37.1^[214]

If the child is older, emotionally mature and able to give their views and wishes, a judge uses a "best interests of the child" legal test. The Office of the Children's Lawyer can prepare a custody and access assessment "voice of the child report" is prepared if the child is over the age of 7.

Information around coercive family violence under the Divorce Act.

Bill C-78 has brought coercive controlling violence (CCV) into effect.^[215] Coercive and controlling behavior is included in the definition of family violence to the Divorce Act.^[216] In considering the "best interests of the child," the court must now consider the impact of family violence on parenting and contacting arrangements. This includes its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child.^[217] In considering the impact of any family violence, the court will take into account whether there is a pattern of coercive and controlling behavior in relation to a family member.^[218] Generally, the most serious type of violence in family law is coercive and controlling violence.^[219]

Residential tenancy law

Housing and real property rights are dealt with on a provincial basis. The provincial statutes differ as to how domestic violence is proven and what procedures are used to terminate tenancies. The responses below are a general overview of the trends in the provinces and territories.

Regarding tenancies, most provinces have amended their residential tenancies statutes to specifically provide victims of domestic violence with certain protections in relation to their tenancies. In jurisdictions that have not amended their residential tenancy legislation, there is civil protection legislation available that may provide some remedies. Residential tenancy statutes also create specialized administrative tribunals or dedicated government agency to determine disputes between landlords and tenants. These tribunals or agencies aim to provide a less costly and more expeditious process for resolving issues. As a result, landlord and tenant disputes rarely make it to the courts and most of the tribunals/agency decisions are not available to the public, therefore, researching trends in this area is a challenge.

Under family law acts and marital property acts or other similar statutes dealing with the distribution of property when a spousal relationship break down typically do not include domestic violence as a relevant factor.^[220] There is, however, judicial discretion to grant exclusive possession of the family home if the circumstances warrant it (including domestic violence).

Summary of relevant tenancy statutes (or civil protection acts)

• Residential Tenancy Act, SBC 2002, c 78, Sections 45.1-45.3 (British Columbia)
• Residential Tenancies Act SA 2004, c R-17.1, Sections 47.1-47.7 (Alberta)
• Residential Tenancies Act SS 2006, c R-22.0001, Sections 64.1-64.3 (Saskatchewan)
• Residential Tenancies Act, CCSM c R119, Sections 92.2-92.4 (Manitoba)
• Residential Tenancies Act, 2006, SO 2006, c 17, Section 47.1-47.4 (Ontario)
• Civil Code of Quebec, Article 1974.1 (Quebec)
• Residential Tenancies Act, SNB, Section 24 (New Brunswick)
• Residential Tenancies Act, RSNS 1989, c 401, Section 10 (Nova Scotia)
• Rental of Residential Property Act and Victims of Family Violence Act (PEI), Section 12 (Prince Edward Island)
• Residential Tenancies Act, 2018, SNL 2018, c R-14.2, Sections 25-26 (Newfoundland & Labrador)
• Residential Tenancies Act, RSNWT 1988, c R-5, Section 54.1 (Northwest Territories)
• Residential Landlord and Tenant Act Section 45 (Yukon)
• Residential Tenancies Act (Nunavut)

Housing on Canadian reserves (First Nations) and military housing (Canadian Forces Housing Agency) are subject to separate governing principles.

First Nations

Under Canadian law, the FHRMIRA,^[221] recognizes the authority of First Nations to pass laws related to the use, occupation and possession of family homes on its reserves; and the division of property on reserves between spouses and common-law partners.^[222] Additional laws deal with the use, occupation and possession of family homes on First Nation land under the First Nation Land Management Act (Section 20(1)(c)(i)).^[223] Remedies under this regime are available to current or former married spouses and common-law partners (Section 2(4)). FHRMIRA is applicable if either the applicant or respondent is a First Nation member, or an Indian as defined under the Indian Act (FHRMIRA, Section 6).^[224]

There is nothing in law that specifically prevents landlords from evicting victims of domestic abuse. Certain provisions may even make it difficult for tenants who are victims of domestic violence to remain in their rental premises because they are at risk of eviction on the basis of their abusers' behavior. Residential tenancy legislation typically allows landlords to terminate tenancies for breach of the promise to avoid significant interference with the rights of the landlord and other tenants if a person permitted on the residential property by the tenant has or is likely to engage in illegal activity, cause damage to the landlord's property or affect the physical well-being of another occupant of the residential property.^[225] Acts of domestic violence constitute illegal acts justifying the termination of tenancies, as do breaches of no-contact orders.^[226]

Yes. However, not all types of tenancies can be terminated early in all jurisdictions. Most provincial residential tenancy statutes include provisions that allow tenants to end their tenancy and cancel their lease (including fixed-term tenancy agreements) if, because of the violent behavior of a spouse or former spouse or because of sexual aggression, the safety of the tenant or of a child living with the tenant is threatened. The tenancy is terminated by delivering written notice to the landlord citing the termination due to family or household violence. This notice must be given one month in advance and a tenant is responsible for rent payment during the notice period. The termination date, even due to domestic violence, must be the day before the monthly rent is due.

The notice to terminate delivered by the victims of domestic violence must include supporting documents to substantiate the grounds for termination. The documentation required in each province is different but it may include providing a copy of a peace bond or restraining order or a statement or certificate from a third-party professional confirming the existence of domestic violence. The third party verifiers may include social workers, child welfare workers, victim service workers, psychologists, police and health practitioners. In Quebec, the termination of a fixed-term lease takes effect two months after a notice is sent to the landlord or one month after the notice is sent, if the lease is for an indeterminate term or a term of less than 12 months. The threshold requirements for what qualifies as "domestic violence" is usually connection to civil protection order legislation dealing with orders for exclusive possession of rented housing.^[230]

Under provincial law, subject to narrow exceptions, all information received for an early termination due to domestic violence by the landlord or third-party professional must be kept strictly confidential. Exceptions include a request from a law enforcement agency.

If one tenant ends a tenancy, all tenants subject to the same tenancy agreement will be required to vacate the rental unit when the tenancy ends, unless the remaining tenants enter into a new tenancy agreement with the landlord. When a tenancy is terminated in these circumstances, the landlord is not entitled to compensation or damages for any rent that would have been payable if the tenancy had not been terminated. Liability for rent and damages up to the termination date will follow victims when they leave. Women in public housing who terminate their lease to get away from an abuser but may have to pay all rent owing up to the termination date before they can qualify for public housing again.

One of the barriers to accessing all of the above rights to terminate is that it can be difficult to identify who qualifies as the "tenant" under the residential tenancies legislation, especially when there is no written lease in place. Most jurisdictions have a standard form of residential lease that applies to all tenancies.

Quebec:

Yes. Provincial laws provide a number of different mechanisms to exclude abusers from the residence, such as restraining orders, emergency protection orders, exclusive home possession orders, civil protection orders and peace bonds for reasons of family or domestic violence. The application process differs depending on the type of order sought, and certain orders may be obtained without notice to the respondent. Additional conditions may also be added to the order, where applicable, and may include no contact orders, instructions to report to court, etc. Depending on the type of order sought, applications may generally be made by the at-risk person, by another person on behalf of the at-risk person or at the court's own initiative. ^[231]

First Nations

FHRMIRA allows spouses or common-law partners who are victims of family violence to apply for either of the following:

1. Emergency protection orders (EPOs) for exclusive occupation of family homes on reserves and other remedies.^[232] Applications for an EPO do not require notice to the parties and can be submitted directly to a judge, they are typically short-term solutions. EPOs are currently authorized only in New Brunswick, Prince Edward Island and Nova Scotia.
2. Exclusive occupation orders (EOOs) provide for exclusive occupation of the family home. EOO applications generally require notice to the other party, and can be made only to superior courts.^[233]

Yes. Spouses or adult partners may apply to the court for an order restraining their other spouse or partner from disposing of any property in the family domicile. Courts will generally grant such orders if they are satisfied that the spouse or adult partner intends to transfer property that may defeat the other spouse or partner's legitimate claim to the property.

The definition of "spouse" or "partner" varies by province and may include persons who live in a marriage-like relationship for at least two^[235] or three years,^[236] have a child with the other person or may include a former spouse. In some jurisdictions, some remedies and provisions for dealing with the valuation and distribution of family property when a relationship breaks down, do not apply to nonmarried spouses.

The courts have broad powers to make a general restraining order (an injunction) which may include an order stopping someone from taking out a mortgage on their property, incurring more debt, etc. According to case law,^[237] in applying for an injunction, an applicant must prove: (1) there is a serious issue to be tried; (2) the applicant will suffer irreparable harm if the injunction is not granted; and (3) they stand to suffer more inconvenience if an injunction is not granted than their spouse will suffer as a result of the injunction.

Other considerations for housing

Social housing

Some provinces have social assistance and community planning statutes that include provisions dealing with housing issues faced by victims of domestic violence. For example, in Ontario, the Housing Services Act (HSA) sets out the guidelines to address homelessness and includes regulations under this act requiring that housing plans address the need for accessible housing for victims of domestic violence. ^[238]

The primary challenge for victims of domestic violence is getting access to and qualifying for social assistance housing. The demand for such housing significantly exceeds the amount of housing available, making wait times to access housing lengthy across Canada. Some provinces have special priority housing ^[239] that would give priority to victims of domestic violence. provided they can meet the strict reporting requirements. In terms of barriers for qualifying, if the victim has arrears or an amount owing in connection with a previous tenancy in social housing then the household is ineligible for rent-geared-to-income assistance.^[240]

In Ontario, victims of domestic violence approved for special priority status also have the option of either rent-geared-to-income housing or a portable housing benefit (PHB).^[241] The PHB is a monthly subsidy provided to the household to secure rental accommodation in the private rental market.^[242]

In Canada, there are a variety of statutes, regulations and codes of ethics across the various federal, provincial and territorial jurisdictions that govern privacy and the protection of personal information. One of the complexities to the systems that deal with domestic violence matters is that access to information and privacy legislation may restrict the sharing of information between the criminal, family and child protection systems unless disclosure is necessary to protect a person's mental or physical health or safety, or for law enforcement purposes. In some cases, there is a clear recognition that privacy considerations can and should give way to a duty to share information when doing so would prevent harm to children and/or intimate partners. For example, all provincial and territorial child protection legislation, without exception, requires anyone with information about a child in need of protection to report to the relevant agency.

The following is a summary of the types of access to information and privacy statutes that govern the collection, use and disclosure of personal information in Canada that may be impacted by domestic violence:

• Certain legislation applies specifically to public sector actors,^[243] while other legislation applies to private sector actors.^[244] These statutes typically prevent the disclosure of personal information, except: (i) with the consent of the person to whom the information relates (consent can sometimes be deemed consent); (ii) for the purpose for which it was obtained or compiled, or for a consistent purpose, (iii) by law enforcement institutions to another law enforcement agency, or (iv) for an emergency or compelling circumstances that threaten the life, health or security of an individual.
• The federal Personal Information Protection and Electronic Documents Act (PIPEDA) is the primary legislation application to most private sector actors, the only exception is provinces or territories where they have replaced PIPEDA with a province/territory specific privacy legislation provided that legislation substantially complies with PIPEDA requirements.^[245] PIPEDA governs the collection, use and disclosure of personal information by "organizations," which include associations, partnerships and persons. PIPEDA does not explicitly mention domestic violence, but creates obligations for organizations that could be relevant in the domestic violence context.^[246] In particular:^[247]

• Section 7(2(b)) provides that organizations may use personal information "for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual."
• Section 7(3)(e) allows for disclosure "to a person who needs the information because of an emergency that threatens the life, health or security of an individual and, if the individual whom the information is about is alive, the organization informs that individual in writing without delay of the disclosure."
• Organizations must not give individuals access to personal information about third parties where "to do so could reasonably be expected to threaten the life or security of another individual" (Section 9(3)(c)), unless "the individual needs the information because an individual's life, health or security is threatened" (Section 9(4)).

• Employment legislation, civil protection order legislation and residential tenancy legislation may also create specific privacy obligations in some circumstances. For example, employers are required to protect the confidentiality of records given to, or produced by, the employer related to the employee's domestic violence leave. Similarly, a landlord who receives a notice to terminate early due to violence or abuse is required to keep information confidential.^[248]
• Most jurisdictions have specific legislation governing personal health information, which establishes the rules for disclosure of health information by "health information custodians" (those who have access to health information due to their jobs). ^[249]
• Some jurisdictions like Ontario allow for the disclosure of personal information by law enforcement for purposes such as the protection of the public, protection of victims of crime, keeping victims informed or administration of justice.^[250]
• Confidentiality provisions are prominent in family law legislation and child, youth and family services legislation.^[251] Persons must not disclose, or be compelled to disclose, information obtained in a family conference, mediation or other alternative dispute resolution mechanism under the CFCSA, except in certain circumstances (Section 24(1)).

There is ongoing tension among the systems as they struggle to find a balance between the benefits of improved information-sharing with the need to respect privacy when intimate or confidential information is being held by local, provincial and federal public agencies, boards, commissions and corporations, victim services, police services, community programs, advocacy organization, and health and other professionals.^[252] Some provinces have introduced information sharing protocols to help bridge this gap and avoid the pitfalls of a siloed approach to the legal issues raised in domestic violence cases.^[253] These protocols are between specific identified officials and agencies, who have come together to identify desired outcomes and provide protocols to supplement the discretion that exists in provincial and other privacy legislation to share information in high-risk situations.

While there has been some progress through these information-sharing initiatives, addressing domestic violence is still hindered as a result of privacy protection concerns. For example, privacy concerns (for the rights of the abuser) act as barriers to victims' access to criminal records (such as release dates and past criminal history), which in turn can hinder the ability to construct a realistic safety plans or influence the custody and access orders that may be granted to an abuser, especially given the evidence that past criminality may be a risk factor for family violence.^[254] Police and victim services struggle when making referrals for support because they must respect federal privacy law when releasing victim information to victim services in order to ensure that victims receive appropriate services.^[255]