In this article I discuss what married couples can expect when facing a domestic assault charge in Ontario. This includes the major legal, logistical and emotional challenges husbands and wives will encounter, from the moment of arrest to the conclusion of the case.
As a criminal lawyer focused on domestic cases, I’ve represented hundreds of Ontarians from every stripe and background. But the challenges facing married couples and their families are unique. Since the majority of my law firm’s clients are spouses who have never dealt with the criminal justice system before, I wanted to take the time to address this critical but often confusing area of the law.
My goal, as always, is to help real clients replace anxiety with information. The law of domestic assault in Ontario often runs counter to our intuitions. Charges are laid when they’re not wanted; the incidents leading to those charges are often minor or misunderstood; and the court process ahead can feel slow and unfair. When domestic charges ensnare families and their children, clients want answers urgently.
Time and experience have also taught me the strategic value of a roadmap like this one. When a new client knows what to expect in the weeks and months ahead, their objectives and decision-making processes fall into greater alignment with my firm's defence strategy. The end result is a client who is less anxious, more responsive to my advice, and thus much more likely to get the best possible outcome in their domestic violence case.
What Everyone Charged with Domestic Assault Should Know
Before turning to the specific challenges facing married couples in domestic assault cases, a few general observations are worth emphasizing. I recently published a video on what to do if you've been charged with domestic assault in Ontario. The takeaways from that video apply equally to husbands and wives in the domestic context.
When my law firm’s clients know what to expect in the weeks and months ahead, their objectives and decision-making processes tend to fall into alignment with my defence strategy. The end result is a client who is less anxious, more responsive to my advice, and thus much more likely to get the best possible outcome in their domestic violence case.
Regardless of whether your spouse wanted you charged, all Ontarians facing domestic assault charges should know the following:
Resolving your domestic assault case will take at least several months from the time of your charge. Therefore, make the necessary arrangements now to find suitable living arrangements. Don’t expect your domestic charges to be terminated at the first court appearance. This almost never happens.
Follow your bail. Even if your husband or wife is actively trying to get the domestic assault charges dropped, a failure to comply with your release conditions can result in your arrest and the laying of new criminal charges. The police will not care if your spouse was the one who initiated contact.
Hire an experienced domestic assault lawyer as soon as you can. As you prepare for your first court appearance, the single most important thing you can do for yourself is to hire a domestic assault lawyer to represent you. As I’ve explained in other blog posts, domestic assault cases are unique in the criminal justice system. A lawyer who understands the nuances of domestic assault law will not only alleviate your anxiety by answering your questions, but also instruct you on how to make the best use of the time between your arrest and first court appearance. This can translate into a drastically improved chance of getting a better outcome, faster.
With those tips in mind, let’s have a look at the special difficulties for married couples facing domestic assault charges in Ontario.
Understanding No Contact Orders in Domestic Assault Cases
Although dealing with domestic assault charges is never easy, married couples face an especially hard road. More than in dating or common law relationships, marriage signifies that the life of the spouses is intertwined at every level, from the bills to the in-laws to childcare.
The first instinct of many married couples confronting domestic charges is to reach out to their partners. This is completely understandable because the charge often leaves both parties feeling confused, shocked and alone.
Unfortunately, once domestic charges have been laid a no-contact order will stand in the way. In my experience, this order is the single most significant source of pain and frustration for married couples facing domestic charges in Ontario.
What is a Domestic No Contact Order?
A no contact order prohibits a spouse who is charged with domestic assault from communicating with their partner. No contact orders can be imposed by the police (on an Undertaking) or the courts (on a Release Order). No contact orders are completely standard in domestic assault cases.
The first instinct of many married couples confronting domestic charges is to reach out to their partners. This is completely understandable because the charge often leaves both parties feeling confused, shocked and alone.
Most no contact orders are paired with a radius condition preventing the charged spouse from returning home or going near the complainant. The radius condition can contain exceptions for the retrieval of property, as I describe below.
Although no contact orders are typically limited to the complainant, they can extend to other family members, including children, if those people were present when the incident occurred.
How Long do No Contact Orders Last?
The rule here is simple: a domestic no contact order will remain in place for the duration of the court case – unless and until it is varied. This can mean months or even years of prohibited contact between the married couple as the case makes its way through court.
I sometimes recommend that the uncharged spouse retain and instruct their own counsel. A lawyer representing the complainant can greatly assist the process of obtaining a bail variation, assuming he or she also wishes to resume contact.
Contrary to what police often tell married couples, a no contact order only applies to the person facing the domestic charges. That’s because only the charged party will have signed an Undertaking or Release Order prohibiting communication.
Technically, therefore, the uncharged spouse is free to communicate with whomever he or she wishes. However, uncharged spouses should avoid sending correspondence to their partners, even if they are technically free to do so. Such conduct could amount to aiding and abetting a violation of a court order. In addition, if the charged spouse responds they could be arrested for failing to comply with their release.
Can a Domestic No Contact Order be Lifted?
Yes, domestic no contact orders can be lifted. The process is known as a “bail variation”, although the actual steps involved can vary. The most effective way to get a domestic no contact order varied or lifted is with the assistance of a skilled domestic assault lawyer.
Most of my married clients simply want to know how quickly their domestic no contact order can be lifted. The short answer is: it depends. At a minimum, lifting a no contact order requires the existence of a court file and case brief. These don’t exist in the days or even weeks after an arrest. Obtaining a bail variation, therefore, typically isn’t possible until around the first court appearance date, when the court files are generated by police.
Under no circumstances would a court or Crown Attorney approve a bail variation permitting contact without the prior consent of the uncharged spouse.
Clients should also keep in mind that most bail variations are obtained “on consent”. This involves your domestic assault lawyer meeting with the Crown Attorney to get persuade them to change the terms of your release. For this reason, I sometimes recommend that the uncharged spouse retain and instruct their own counsel. A lawyer representing the complainant can greatly assist the process of obtaining a bail variation, assuming he or she also wishes to resume contact.
Clients should remember that, when seeking a bail variation during a pending case, the wishes of the complainant will govern. Prior to signing off on a variation the Crown Attorney will seek input from the complainant either from Victim Services or through the private lawyer representing them.
Under no circumstances would a court or Crown Attorney approve a bail variation permitting contact without the prior consent of the uncharged spouse.
What Happens if I Can’t Get the No Contact Order Lifted?
Where lifting the no contact order is not possible, your lawyer and the Crown Attorney may reach a compromise. The client may be permitted to resume contact but not live with the complainant. Or the parties may be permitted to resume contact for specific purposes, such as facilitating access to the children or to engage a marriage counsellor.
In some cases, lifting the no contact order while the case is before the courts will simply not be an option. To better understand if lifting or varying the terms your no contact order is, call our law firm today.
Coping with Relationship Strain After a Domestic Charge
Uncertainty about the marriage is a major source of pain for clients facing domestic charges. For many couples, the domestic case marks a clear breaking point, with separation and divorce looming on the horizon. For most, however, the marriage landscape after a charge is much more ambiguous.
Domestic charges are often the result of relationship dynamics that have been present in a marriage for years, even decades. For couples who have learned to live with their spouses’ defects, the involvement of police doesn't signal the end - but a fork in the road. Will the couple continue to fight for the marriage; or have they awoken to a new perspective on life apart?
Domestic charges are often the result of relationship dynamics that have been present in a marriage for years, even decades. For couples who have learned to live with their spouses’ defects, the involvement of police doesn't signal the end - but a fork in the road.
What makes this time especially difficult for married couples is their inability to communicate. Husbands and wives are left to process powerful and complex emotions without knowing what their partner wants. These feelings run the gamut from resentment and anger, to the most desperate forms of remorse.
The Best Way Forward is to Focus on You
What should clients coping with relationship strain do? My take is simple, and based on over a decade of experience: they should see a therapist. In fact, they should get all the help they can with all the problems they ever suspected they had - from substance abuse, to anger management, to understanding the picture of their own mental health.
Think of the personal benefits of counselling this way: your domestic case is going to take several months to resolve. You can spend that time coping with the case; or you can spend it learning, growing, and laying the foundations for a healthier relationship in the future.
It should come as no surprise that most of my law firm’s clients are men with stereotypically male attitudes. Many have trouble coping with the stress of being charged – yet they refuse help. They think there’s no point talking to anyone about their feelings. Some worry that if they do end up taking counselling, this will send the message that they’ve done something wrong.
Both of these objections should be put to rest. The clients who reject the value of counselling simply haven’t tried it. Those who do, especially the resistant ones, thank me when they’re done.
Think of the personal benefits of counselling this way: your domestic case is going to take several months to resolve. You can spend that time coping with the case; or you can spend it learning, growing, and laying the foundations for a healthier relationship in the future.
Even more importantly, counselling will help your criminal case. Counselling is not an admission of guilt. Instead, it’s a signal that you take the allegations seriously, and that you can be trusted by the court not to find yourself in this position again. As I’ve explained elsewhere, counselling is something that can only help, not hurt, your case. It’s a tool I use every single day for getting domestic charges dropped.
The Question of Children and Joint Property
Married clients often encounter difficulty accessing their property or seeing their children after being charged with a domestic. To an extent these challenges come with the proverbial territory. The process of responding to domestic allegations in the family context will be inconvenient. Clients should, therefore, start by adjusting their expectations early in the process.
Clients should be mindful that the police are not a moving company. Your list of property should be kept simple and should avoid any items which could trigger a dispute.
In practical terms, this means accepting that you will not have access to all your creature comforts. You may also need to navigate the world of joint bank accounts and home bills without direct contact with your spouse. And of course, decisions will need to be made concerning where the children will live, and what access arrangements make the most sense.
In many ways, the health of the marriage and intentions of the parties will determine how easily these issues are dealt with. If the parties wish to reconcile, issues like finances and childcare tend to be easy enough to work through. If, on the other hand, the domestic charges lead to a breakdown in the marriage, it may become necessary to decouple finances or obtain the help of a family lawyer to gain access to the children.
How to Retrieve Your Property After a Domestic Charge
There are steps clients can take to retrieve their property after a domestic charge. The starting point is to carefully review their conditions of release with the assistance of a domestic assault lawyer.
If further property retrieval becomes necessary the easiest solution is often to enlist the help of a third party.In very rare cases – where, for example, the matrimonial home is being sold - a bail variation permitting multiple attendances at the residence may become necessary.
If the couple was cohabiting prior to the charge, the release order will usually permit attendance at the residence on one occasion in the company of police to retrieve personal belongings. If that is the case, I recommend clients make a list of items they intend to pick up before making the necessary arrangements. As they do so, clients should be mindful that the police are not a moving company. Your list of property should be kept simple and should avoid any items which could trigger a dispute. Furthermore, as the language of the exception suggests only one visit will be permitted.
If further property retrieval becomes necessary the easiest solution is often to enlist the help of a third party. In very rare cases – where, for example, the matrimonial home is being sold - a bail variation permitting multiple attendances at the residence may become necessary.
Make sure to speak with your domestic assault lawyer before taking any of these steps.
How to Access Your Children after a Domestic Charge
Clients who want to see or speak to their children after a domestic charge should start by examining their release documents. The release order sets a baseline for permissible and impermissible contact, and may also including exceptions relating to the children.
Generally speaking, family court orders are only necessary where the parties cannot see eye to eye concerning access to the children.
In some cases, contact with a child may be absolutely prohibited because of their status as a witness. In other cases, the release order may prohibit contact with the spouse but remain silent on the issue of the children. Since breaching a release order can have serious legal consequences, you’ll want to review this document carefully with the assistance of your domestic assault lawyer.
In my experience, after an arrest any children in the family will usually remain with the uncharged spouse at the matrimonial home. The husband or wife facing the charges is then permitted to communicate with the children either with the assistance of a third party or pursuant to a family court order.
Generally speaking, family court orders are only necessary where the parties cannot see eye to eye concerning access to the children. For example, where the marriage has broken down and the uncharged spouse refuses to permit access, the charged spouse may need to retain a qualified family lawyer to secure a court order on the issue.
In most cases, the uncharged spouse remains supportive of co-parenting. Access is then facilitated through the use of a “mutually agreeable third party,” meaning that the complainant retains the right to choose who can act as an intermediary.
The Involvement of the Children’s Aid Society After a Domestic Dispute
Another aspect for married couples to keep in mind is the involvement of the Children’s Aid Society. If there are children in a family where domestic charges have been laid, the police will notify the Children’s Aid Society of the incident. A Children’s Aid Society caseworker will then contact one or both parents to schedule an interview. This process usually occurs within a few days or weeks of the incident.
The purpose of the Children's Aid Society interview isn’t to punish parents or to further police investigations; but to ensure that there is an adequate plan of care for children in the home.
The involvement of Children’s Aid can be an especially stressful development for parents involved in a domestic case. Most clients whose relationship difficulties have spilled over into the criminal sphere are shocked to learn that there could be consequences for their children, too.
Why is the Children’s Aid Society Contacting You?
Before assuming the worst, it's important to understand the role of the Children’s Aid Society in domestic cases. After charges have been laid, the Children’s Aid Society is required to ensure the health and safety of the children in the home.
The purpose of their interview isn’t to punish parents or to further police investigations; but to ensure that there is an adequate plan of care for children in the home. Their interview, therefore, will touch on topics as basic as supervision, nutrition and schooling, but also include a frank discussion about violence or other harmful behaviours in the home.
Importantly, Children’s Aid Society workers are not governed by the same rules that police must follow. Therefore, “remaining silent” or demanding a “search warrant” could transform what would otherwise be a short investigation into a long and bitter experience.
The vast majority of the domestic cases I’ve dealt with have resulted in no action by the Children’s Aid Society. However, if you’re facing domestic charges and have been contacted by the Children’s Aid Society, you should speak to a lawyer knowledgeable in this area before taking any further steps. Your domestic assault lawyer will be able to provide basic advice on the interplay between the criminal case and the CAS. In some cases, however, that advice may need to be supplemented with the opinion of a lawyer who practises specifically in child protection.
Wrapping Up: The Road is Long, but Comes to an End
I hope this guide was helpful to Ontarian couples facing the long and confusing road of domestic assault charges together. It is the culmination of over a decade of intensive work and experience in this very challenging but rewarding area of the law.
As the years go by, I view myself increasingly, not as a domestic assault lawyer, but as a lawyer focused on family reunification.
As the years go by, I view myself increasingly, not as a domestic assault lawyer, but as a lawyer focused on family reunification and the personal development of my clients. I've learned that the most effective defence isn't to pound the table, but to cut with the grain of my clients stories and allow them to earn the best possible result.
Domestic assault charges can feel like earth-shattering events, but if it's also possible to view them as tremendous opportunities for growth. The time you have away from your partner is a chance to think, heal and course-correct. With the right legal advice, not only is there a good chance you'll get the charges dropped; but for those of you who want it, a more loving marriage could be waiting on the other side.
As always, feel free to call or email my law firm if you or your spouse is facing domestic charges anywhere in the province.
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