I Have Been Charged With Domestic Assault – What Happens Next?

Domestic violence is a serious issue, and one that is treated as such by both the criminal and family courts in Ontario, though there are different consequences for each. While it is recommended that you seek advice from a criminal lawyer with regard to the criminal consequences of the charge, I will provide a general outline of what to expect in your circumstances. However, I can tell you with some specificity what could happen in the family law context.

The Criminal Context

While I am not a criminal lawyer, many of the family law cases that I handle have related criminal proceedings. It is not uncommon in the breakdown of a relationship that allegations of domestic violence are made and criminal proceedings are initiated as a result.

If this is your first court appearance, then this is known as a ‘set-date’ court and very little will happen substantively. Given that you have been charged with what appears to be one count of simple assault, your case is most likely in the Ontario Court of Justice. If this is the case, your first appearance will be before a Justice of the Peace, where the Crown prosecutor will give you your disclosure (if you haven’t received it already), which is a package of the police notes, witness statements and any other documents that the Crown may use against you. The Court will then set a return date, which is the next date that you will come back to court.

You should arrive at least 30 minutes before your appearance and speak with duty counsel first. They provide summary legal advice to people on their court date and can provide more detail as to how your first appearance will work. If you have already spoken to a criminal lawyer before your first court date, your criminal lawyer may already have a plan in place for your case.

Once your charge has been screened by the Crown (which may or may not happen before your first date), the Crown will indicate how they want to proceed with your case. If this is your first charge and there have been no allegations of violence since shoving your girlfriend, you may be eligible for ‘diversion.’ In these cases, the most likely outcome is that you will agree to attend a PAR (Partner Assault Response) program and, if you successfully complete it, the Crown will withdraw the charges. Another option is that you will enter into a peace bond, which is a Court Order that requires you to keep the peace for a certain time (i.e. not be arrested/charged) and can have other conditions. In cases of spousal violence, usual conditions are non-contact conditions and geographic restrictions, such as not being within a certain distance of the complainant.

In all cases, I would recommend that you speak with a criminal lawyer about your criminal proceedings. If you cannot afford a lawyer, you may be eligible for legal aid. In all cases, you are entitled to speak with duty counsel on the date of your appearance – which I highly recommend. 

The Family Law Context

Restraining Orders

In regards to most family law issues that arise between people in a relationship (division of property, spousal support), rights and obligations only arise under the Family Law Act when the couple is considered to be ‘spouses’ in accordance with the definitions of ‘spouse’ in that Act. However, s.46(1) of the Act provides the power for judges to make a restraining order against anyone whom the injured party is cohabiting with – people do not need to be spouses or related to get a family law restraining order. You can listen to this podcast that explains family law restraining orders in detail, as well as other family court responses to domestic violence.

Under s.46(1), a court may grant a person a restraining order against a spouse, former spouse, or anyone with whom that person cohabits if that person has reasonable grounds to fear for their safety or the safety of any child in their lawful custody. In interpreting what constitutes ‘reasonable grounds’ – courts have usually said that there needs to be more than mere suspicion, but need not be objective proof in support of their fear. If the only alleged incident is from five months ago, and there have been no safety concerns since a judge may not grant a restraining order. However, if a person continues to fear for their safety despite no recent incidents of violence, a judge may still grant the restraining order.

If your partner were to pursue a family law restraining order, she or he would have to file and serve you with a family court application. In cases where the restraining order is not urgent, the case will proceed like any other family law case. You can listen to these podcasts (Parts I, II, III) that explain the family court process and what to expect. In these cases, you will have the opportunity to argue your case before any order is made. If the need for a restraining order is urgent, a spouse can bring a motion without notice to the other party, and if the court feels that circumstances are urgent and a restraining order is necessary, the court can grant one without giving you the opportunity to argue your case beforehand.

The Family Law Act provides wide latitude to judges regarding the terms of a restraining order. They can order that the restrained person not contact the victim, not come within a certain distance of any place (such as a house or school) or any other provision the court feels is appropriate. This latter provision allows family court judges to attach any condition to the order that they feel is appropriate, which can mean non-contact with third parties or other case-specific conditions.

Like any other order, a restraining order can be made on a temporary or final basis. If the order is temporary, then it will end on a date specified by the judge or, more usually, continue until the next court date. If the order is final, it is indefinite. Persons who have gotten restraining orders or are subject to restraining orders can ask a court to change the conditions of the order. The normal rules to vary or change an order apply to restraining orders. If you wish to change the terms of a restraining order, you should speak to an experienced family law lawyer before doing so.

Concerns Regarding Seeing and Protecting Children

If the domestic violence happened or is alleged to have happened in from of the children, then the consequences can be even more serious. First, you can expect to hear from a children’s aid society, even if the violence was not directed toward the children. The child protection worker will be worried that the children suffered emotional harm from witnessing the violence and that there may be an environment of power imbalance and control that is unhealthy for the children. If a children’s aid society calls, it is critical that you prepare for the child protection worker’s visit. But, because of the potential consequences, you should also speak to a child protection lawyer about your situation. Also, keep in mind that the child protection worker will also interview the children about what happened.

There can also be serious consequences with regard to your relationship with the children if they were in any way exposed to the violence. Often, the criminal court orders will prevent you from having contact with the children. In the best circumstances, that criminal court order will allow you to have contact “in accordance with a Family Court Order”, which means that the judge in your family court or divorce case can make an access order in your favour.

There are several factors that judges have to consider in deciding what access children should have to their parents. However, in the case of domestic violence, section 24(3) of the Children’s Law Reform Act requires that the judge also consider what violence committed against a spouse or parent, another member of the same household or a child, says about a person’s ability to parent. Judges do not believe that such behaviour demonstrates good parenting. The best a person convicted of domestic violence can hope for is that the judge will feel the actions did not impact parenting. 

However, where the alleged violence is serious, a family court judge’s biggest concern will be the safety of the children. Until that safety is established, the Family Court Order for access can be very restrictive. Cases involving domestic violence, or allegations of domestic violence are very difficult and present lots of dangers. If you are accused of domestic violence, you could lose your kids due to concerns about your behaviour. If you are a victim of domestic violence, you could lose your kids out of concern that you are not protecting them. You could lose access to your home. And, there is a danger of going to jail. You need to get help go a good criminal lawyer and excellent family lawyer right away. Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-5869, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

To learn even more about child custody issues, child support, and how to deal with both the inside and outside of court, get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast. You can also use the search on the right to find lots more articles about child custody, support and divorce.

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