Domestic Assault Charges: Your Home and Your Children

The short answer

A domestic assault charge often means you cannot go home, and sometimes you cannot see your children. These are release conditions, and they apply until the case ends or a court changes them.

For many people, this is the hardest part of the case. It can often be fixed, but only through the proper process. Acting on your own, even with good intentions, can lead to a new charge and make the situation much worse.

Why you may not be able to go home

Release orders in domestic cases usually ban contact with the complainant and require you to stay away from the shared home. The justice and the Crown are focused on safety while the case is open, not on who owns or rents the home.

As a result, you may be barred from a home that you own and pay for. That does not change your property rights. It only controls where you can go while the charge is outstanding.

For example, someone who is the only name on the lease can still be ordered to stay away. Going back, even for a short visit, is a breach. In some cases, completing the Partner Assault Response (PAR) program is part of how the case is resolved, so it is worth asking your lawyer whether it may apply to you.

Practical issues while you are out of the home

Being ordered out of the home raises many practical problems, such as paying the mortgage or rent, getting mail, using a shared car or accessing joint bank accounts. Your criminal release order does not resolve these issues. Some of them can be dealt with through family court or by agreement between lawyers, while others may require a carefully worded change to your release conditions.

Contact with your children

Conditions about children vary a great deal. Some orders ban all contact, while others allow contact through a third party, through a family court order or under supervision.

Children may be named in the order if they were present during the incident, or if the Crown thinks they could be witnesses. Read the exact wording carefully. If it is unclear whether you can call your child or attend a school event, ask before you act.

How criminal conditions and family court interact

Criminal and family courts are separate, and they can make orders that do not fit together.

If your criminal release order bans contact with your children, you must follow it, even if a family court order gives you parenting time. The criminal condition comes first until it is changed. Many release orders solve this by allowing contact "in accordance with a family court order." If yours does not, that is often the first change to ask for.

The Crown Prosecution Manual (D. 23) tells prosecutors to consider existing family court orders when they suggest conditions, so it is important to raise any family court order early.

Family court will also take the criminal charge into account. Under the Children's Law Reform Act, s. 24, a family court judge must consider family violence when deciding parenting arrangements in a child's best interests. A family court can also make separate orders about who lives in the home.

Changing your conditions

There are two main ways to change your conditions:

• By consent: You, the Crown and any surety agree in writing, and the change is filed with the court (s. 519.1). A police undertaking can also be changed with the Crown's written agreement (s. 502).
• By bail review: If the Crown will not agree, a Superior Court judge can review the conditions (s. 520). See our bail review guide.

Requests are stronger when they include a clear, specific plan. For example, contact with children supervised by a named relative, at set times and places, is easier to agree to than general access.

Children's Aid involvement

A Children's Aid Society may open a file if children live in the home or saw the incident. This process is separate from the criminal case and has its own rules.

What you tell a worker can end up as evidence in the criminal case. Get advice before an interview, and be respectful and cooperative within that advice.

What happens after you are charged

1. Release: You receive conditions that may keep you out of the home and away from your children.
2. Immediate planning: You arrange a place to stay and gather information about any existing family court orders.
3. Variation request: Your lawyer asks the Crown to agree to workable conditions about the children and your belongings.
4. Family court coordination: If parenting issues need to be decided, your criminal and family lawyers work together so that the orders fit.

What to do now

• Read your release order and note exactly what it says about the home and the children.
• Do not go to the home or contact the children unless the order clearly allows it.
• Gather copies of any family court orders or separation agreements.
• Write down a specific proposal for contact with your children, including who could supervise.

Immigration and family consequences

For people who are not Canadian citizens, the outcome of a domestic case can affect immigration status, sponsorship applications and future travel, especially where s. 263.1 raises the maximum penalty to 10 years or more. Because family court proceedings and immigration matters may be happening at the same time, it is important that your criminal lawyer knows about every other legal process in your life, so that decisions in one case do not cause unexpected problems in another.

Coordinating with your family lawyer

Many people charged with domestic assault are also involved in separation, parenting or property proceedings. What you say in a family court affidavit or a parenting assessment can sometimes be obtained by the Crown, and what happens in the criminal case can influence parenting decisions. Your criminal and family lawyers should share information, with your permission, so that both cases move in a consistent direction.

How we can help

We can review your conditions, ask the Crown for changes that let you see your children safely and coordinate with your family lawyer. Call (647) 223-1980 for a free consultation.

Frequently asked questions