Domestic assault is an alleged assault that occurs within the context of a domestic relationship. It is only natural that one of the first thoughts that come to mind if you are facing a domestic assault charge is how this will impact access to your family. What you need to understand is that a domestic assault charge brings your matter under the Criminal Code of Canada and in criminal court. Access to your children is primarily a matter best dealt with in Family Court. Nevertheless, what takes place in criminal court can have a direct impact on your ability to see your children.
For instance, if following the laying of the domestic assault charge, there is a restraining order placed against you that includes a condition barring you from temporarily visiting your children, then you must abide by this restriction. This could occur if your spouse or common law partner makes such a request.
If no restraining order is put in place, then your ability to access your children will depend on any family law orders that may be in place. If there are no family orders in place preventing you from visiting your children, then it is advised that you use your discretion to ensure that matters between the parents are not worsened. For instance, you may want to consider having a neutral third party facilitate communication and organize visitations with the children, while your criminal matter is being sorted out.
You could also be held on bail following a domestic assault charge and then if released, have a condition placed on your release that you do not contact directly or indirectly your spouse, parent or common law partner and/or your children, if any. If this is the case, you must abide by this condition otherwise you will be re-arrested and reduce your chances of being released on bail again. A breach of a bail condition is a criminal offence that diminishes your credibility and carries with it a criminal record.
Domestic Assault in Canadian Law
Allegation of domestic assault are taken very seriously by the police, the Crown Attorney’s office and Canadian courts because of the prevalence of domestic abuse in society, the power imbalances it creates, the impact it can have on any children living in the home, and the risk of the violence escalating if the abuse is not dealt with in a timely and appropriate manner.
While domestic assault charges are only a charge and not a conviction based on unfounded allegations, prosecutors will still handle such cases with utmost care and attention. More often than not, a formal investigation is initiated. This is especially so where children are involved. It is usually during this period that you may be prevented from having contact with your spouse/common law partner and children, if any. Contact with your family during a domestic assault situation causes concern for safety issues. Given the volatile emotions involved, problems can escalate quickly. This is precisely why restraining type orders are put into place until a matter is resolved completely and with proper measures in place.
It is highly advised that you retain the assistance of a criminal defence lawyer to help alleviate the restrictive condition(s) that may be imposed on you. A lawyer can determine whether or not there are creative ways available to allow you temporary access to visiting your children.
How Courts Determine Restraining Orders
Ontario law requires that a court consider any violence against a spouse or parent of a child when making an order for custody of or access to a child or children. A parent can be denied access to see his or her child or children or be required to exercise visitation under supervision. Even the person supervising the visits may be required to be approved by the courts.
A spouse, common law partner or parent can request that the court make a restraining order. Such an order can have general or specific conditions and restrictions. For example, the recipient of the restraining order may not permitted to attend at the mutually shared home, place of work or the children’s school. The restraining order is served on the recipient as soon as possible.
Consequences of a Breach of Restraining Order
If any of the conditions of a restraining order are disobeyed, the police can be called. The person who committed the breach will then be arrested and charged with a criminal offence. This will be added to one’s criminal record.
Exclusive Possession of the Family Home
A spouse can also ask the court to make a temporary order giving them what is referred to as, “Exclusive Possession of the Home”. This request only applies to married couples. This order gives the spouse making the request the right to live in the home and make the other spouse leave. The court takes a number of factors into consideration before imposing such an order. For example, the judge will consider if there was violence in the relationship, whether there is another suitable place to live, if it is in the children’s best interest to stay in the matrimonial home, and the parties’ financial position.
If an order for Exclusive Possession is granted, then the other spouse must leave and remain out of the home. If this condition is breached, the police can be called and the person who breached the order will be arrested and charged with a criminal offence.
How We Can Help
At Aitken Robertson, we can answer all of your questions and address your concerns. We seek to help our clients avoid the devastating consequences of a conviction or of unfounded allegations. Most importantly, we try to find resolutions that protect your rights as well as preserve your family relationships where possible. Call our eastern Ontario region lawyer, Virginia Dolinska, for a free 30-minute consultation to discuss your situation and best course of action.