Domestic Assault in Toronto and How We Can Help
Unfortunately, domestic assault is prevalent in our society. It is common in matrimonial proceedings. The domestic abuse may be physical or mental. In either case, it can be very damaging for the husband or wife and detrimentally affect the children of the marriage.
An individual should not hesitate to contact the police if he/she is being abused by their spouse. Due to numerous high profile domestic assault incidents, the police are unlikely to tolerate any assault between spouses. They quite often will remove one child from the residence and, if there are children, report the matter to the Children’s Aid Society (or CAS or JFSC). It is also possible that the police will lay a criminal charge as against one or both spouses.
The Children’s Aid Society will then investigate the home to determine if the children are being abused in any way. It is possible for the CAS to remove the child from the residence if they believe that the child is at risk of harm.
Once a spouse is charged with a domestic assault criminal offence, it is very difficult for the other spouse to try to have the charges dropped. The case is in the hands of the Crown Attorney. It is up to the Crown how they wish to proceed with the charge. If the other spouse does not cooperate with the Crown Attorney’s office in facilitating the charge, it is possible for the “victim” to be charged for obstructing justice.
Our Experienced Domestic Assault Lawyer Can Help – Dual Competencies in Criminal & Family Law
At Fine & Associates, our trusted domestic assault lawyers in Toronto dedicate our legal practice to helping families through difficult times during complex family law problems. We also help with criminal charges arising from the breakdown of a relationship.
It is exceptionally proactive to hire a family lawyer who is also a seasoned criminal lawyer.
Domestic Violence in Canada
An Overview
- In Canada, many kinds of assault are illegal
- stalking (criminal harassment – watches you or follows you/ damages property/ tries to contact you and you don’t want them to – if being stalked, keep a journal and used to convince police and court that person should be charged)
- assault – one person applies force to another person or attempts or threatens to apply force to another person (verbal threats of violence, slapping, shoving, kicking, punching, stabbing,)
- sexual assault – sexual act or touch that you do not consent to (husband can be charged with sexual assault – it is a crime even if you are not hurt (unwanted kiss, sexual touch, forced penetration)
- Different kinds / could be physical, sexual, emotional (not a crime), psychological and financial
- Assault because abuser needs power and control over the victim
- police can lay a criminal charge for assault after an investigation even if the victim does not want to lay a complaint
Options for Domestic Violence
- if you believe that either yourself of your children are in danger if you are separating from an abusive spouse, there are legal options that you can use to help you
- Restraining Order – (s.40 of the FLA) can be against your spouse or CL partner, or someone you have resided with/ prevent the person from “molesting, annoying or harassing” person and/or children
- limits what the abuser can do/ not to contact you or go near you
- If it is urgent, an Order can be obtained asap (can apply on an ex parte basis or without notice – usually effective for a short period of time) or it may take longer/ an Order may be for a certain period of time or for an indefinite duration
- The restraining order is registered with CPIC (This order will be registered against the person being restrained on the Canadian Police Information Centre (CPIC) Database. Disobeying this order is a criminal offence punishable by fine or imprisonment. Any police or peace officer with jurisdiction over the place where the order was disobeyed may arrest the person being restrained without a warrant in accordance with section 495 of the Criminal Code of Canada) – police check CPIC every time they respond to a domestic cal
- Breach of a restraining order can be liable for a large fine or 3 mnths in prison
- Exclusive Possession – (s.24 of FLA) if you are married, you can apply for exclusive possession of matrimonial home (defined as property in which either spouse has an interest and is or was at the date of separation occupied by the person and their spouse as their family residence)/
- prima facie each spouse is entitled to reside in the Matrimonial Home / crt can order that one spouse have possession of the house and deal with payment of costs etc. (CL spouse has not common law right to occupy his or her CL spouse’s property)
- crt can make an order to protect spouses or children who are at risk of violence if the other spouse is allowed to remain in the house
- crt looks at best interests of children in granting an EP order/ important consideration/may also look at the financial position of each of the parties, availability of other accommodations, history of violence/ if you breach an Order for exclusive possession can be liable for a large fine and 90 days in jail
- crt can order occupation rent paid to other spouse not in possession (may be offset by payment of expenses of house)
- spouse’s right to possession of the house under the FLA ends when the parties are divorced so a court cannot order exclusive possession after the divorce
- spouse cannot come to the property whether you own it or rent/ allow you to change the locks (CL more difficult to obtain EP Order)./
- EP Order does not impact your interest in the house, but it may impact the ability to obtain an order to sell the house
Criminal Proceedings of Domestic Assault Charges
- Terms of Release – once charged the abuser may be released by police or may be held for bail hearing./ at a hearing the court determines if the person is released or held for bail/ if released on bail will be on strict conditions
- Family court order – may say that your abuser has the right to spend time with the children, but if charged with assault against both may say no access or supervised access
- Peace Bond – if you are threatened or assaulted, you may get a peace bond (person is to stay away from you or your property – not involve the police – go to a JP and advise why you are afraid of your abuser/ peace bond is not a criminal charge but disobeying is a crime/ it can be registered with CPIC – police can charge him with breach of the peace bond, they must have a record of it
Restraining Order – What You Can Do With Domestic Assault
An abused spouse can also apply to the courts for a “Restraining Order.” A Restraining Order will provide that the other spouse not contact the abused spouse directly or indirectly. It may also provide that the other spouse not come within 50-100 metres of the abused spouse’s place of business or residence. A Restraining Order is not a criminal charge. However, once a Restraining Order is granted the court will request that a CPIC form is completed, which describes the alleged abusive spouse. The information on the CPIC form is then entered into a police system. The effect is that if an abused spouse ever contacts the police about his/her spouse after obtaining a Restraining Order the police will treat the call very seriously.
A court will usually not hesitate to grant a Restraining Order. It is possible to obtain a Restraining Order from the court on an “ex parte” basis (or without notice to the alleged abusive spouse). Although, if obtained ex parte, it is likely that the court will order that the Affidavit and Order be served on the alleged abusive spouse.
An individual who is abused by their spouse should never hesitate to either contact the police or bring a motion for a Restraining Order.
Stats of domestic assault in Canada:
- In 2014, 4% of Canadians with a current, former spouse or common-law partner reported having been physically or sexually abused by their spouse during the preceding 5 years.
- For the majority of spousal violence victims, the police were never made aware of the assault (~70%)
- 14% reported being victims of emotional or financial abuse
- 11% of victims of violence said that they obtained a restraining order against abuser.
*Source: Statistics Canada