The consequences of a domestic assault arrest in Ontario can have a significant impact on your family life, even if the charges are dropped or the case ends in acquittal. If you’re a parent, your arrest will have an immediate and longer-term impact on your interaction with and custody of your children.
For starters, the police will order your removal from the home and typically issue a no-contact order that covers both the spouse/intimate partner and minor children in the home. The removal and no-contact order will generally remain in place until further resolved by the courts. For the longer term, the arrest will likely play a significant role in family court decisions involving separation, divorce, and child custody.
With decades of domestic assault criminal defence and family law experience in the Greater Toronto Area, the lawyers of Mass Tsang are intimately familiar with how the repercussions of a domestic assault arrest extend deeply into family court decisions. Let’s further examine how domestic assault charges can affect child custody in Ontario.
There is no law, per se, against domestic assault, which is more commonly referred to by government agencies as “ intimate partner violence .” However, domestic assault falls under the rubric of Criminal Code Sections 265-268 (1), addressing the criminal offence of assault. Section 265 of the Criminal Code defines the lowest level of assault as:
Simple assault can be charged as either a summary conviction or an indictable offence and carries maximum penalties of two years’ imprisonment for the former and five years imprisonment for the latter.
Section 267 of the Code addresses assault with a weapon or causing bodily harm, while Section 268 (1) covers aggravated assault. These offences carry much harsher penalties that max out at 14 years imprisonment, as well as the greater likelihood of being sentenced to prison.
While the terms “domestic assault” and “intimate partner violence” are not mentioned by the Code, the police, courts, and the Crown have special protocols for handling assaults that are domestic in nature. For example, police are required to remove the alleged assailant from the household and typically issue a no-contact order that remains in place until resolved by the courts. Crown prosecutors are encouraged to take a harder stance against alleged offenders, and judges are mandated to consider intimate partner violence as a significant aggravating factor in sentencing.
"Domestic assault allegations often create legal issues that extend far beyond the criminal courtroom. Parents facing these charges should understand that family law consequences can begin immediately, long before a criminal case is resolved."
- Jeff Mass, Co-Founder, Mass Tsang LLP
| Offence | Criminal Code Section | Description | Maximum Penalty |
|---|---|---|---|
| Assault | s. 265 | Intentional application, threat, or attempt to apply force | 2 years (summary) or 5 years (indictment) |
| Assault with a Weapon | s. 267 | Assault involving a weapon or imitation weapon | Up to 10 years imprisonment |
| Assault Causing Bodily Harm | s. 267 | Assault resulting in physical injury | Up to 10 years imprisonment |
| Aggravated Assault | s. 268 | Assault that wounds, maims, disfigures, or endangers life | Up to 14 years imprisonment |
As noted, a domestic assault arrest immediately impacts child custody by removing the alleged offender from the home and issuing no-contact orders. This will remain in play until resolved by the court, which may issue an order allowing child contact/communications, though often with conditions, such as supervised visitation. Resolution of the case with a withdrawal, dismissal, stay, acquittal or other favourable outcome typically ends no-contact orders and related restrictions. However, your intimate partner can still seek family court action to keep you from the home, limit contact with your children, and/or revise child-sharing terms if they are already in place.
If you’re convicted of domestic assault, courts typically maintain no-contact orders and related restrictions as part of the sentence and/or as terms of probation. However, your criminal defence lawyer can petition the court for variances to the terms that may allow some contact and/or communications with the children.
| Issue | Potential Impact |
|---|---|
| Residence | Removal from the family home |
| Child Contact | Restricted or prohibited contact |
| Communication | No-contact conditions may apply |
| Parenting Time | May become supervised |
| Family Court Proceedings | Possible emergency motions and custody applications |
| Existing Parenting Agreements | Subject to review and modification |
If you’re separated from your wife/partner, going through a divorce, and/or already have or are negotiating a child custody agreement, getting arrested for domestic assault will likely have a significant impact on how the family court addresses the issues. The Ontario Children’s Law Reform Act and the federal Divorce Act require family courts to consider the nature, seriousness, frequency, and impact of any family violence on the child and spouse in their decision-making. A family court must prioritize the “best interest of the child” and will implement measures to ensure the safety and well-being of the child in response to the spectre of family violence.
Even absent a conviction, a family court will address the domestic violence arrest in the context of the family law proceedings. The criminal court evidence can be introduced as evidence for the family law case, with the court using a balance of probabilities standard to determine whether the alleged assault occurred. If the family court determines on balance that you committed violent acts, it will almost certainly have a negative impact on family court decisions, including:
| Family Law Issue | Potential Outcome |
|---|---|
| Parenting Time | Reduced or supervised access |
| Decision-Making Responsibility | Loss of sole or joint decision-making authority |
| Primary Residence | Child may primarily reside with the other parent |
| Protection Orders | Restrictions on communication and contact |
| Spousal Support | Increased obligations in some circumstances |
| Property Issues | Family violence may influence related claims and proceedings |
"Family courts and criminal courts operate under different legal standards. Even when criminal charges are withdrawn or result in an acquittal, the underlying allegations may still be scrutinized in family court proceedings."
- Robbie Tsang, Co-Founder, Mass Tsang LLP
| Criminal Court | Family Court |
|---|---|
| Determines guilt or innocence | Determines the child's best interests |
| Standard: Beyond a reasonable doubt | Standard: Balance of probabilities |
| Focuses on criminal liability | Focuses on child safety and parenting arrangements |
| May result in conviction or acquittal | May modify parenting and custody arrangements regardless of criminal outcome |
If you’re facing domestic assault charges in the Greater Toronto Area, you naturally want to secure a favourable outcome in the legal proceedings. However, don’t lose sight of how assault charges might affect you in matters of family law. With longstanding expertise in both criminal assault law and family law, the lawyers of Mass Tsang can help you successfully navigate the legal complexities you’ve become embroiled in and secure the most positive outcomes possible. As our domestic assault and family law client, we will:
To secure the best criminal assault defence and family law representation in the Greater Toronto Area, contact us today for a free consultation.
Yes. An acquittal in criminal court does not prevent re-examination of the underlying allegations in family court. The family court is interested in examining such cases in the interest of child safety and parenting capacity rather than punishing the alleged offender.
Not necessarily, as the family court will not accept the acquittal itself as evidence that some form of violence did not occur.
Yes. A domestic assault charge can significantly impact your child custody status, even if you currently have sole custody. Your spouse/intimate partner can petition the family court to change the order, seeking temporary or final custody or otherwise revising any child custody arrangements. Ontario family courts will make their decision based on the “best interests of the child,” and an unfavourable perspective of violence committed by a parent.
Yes. You must inform the family court about any related criminal proceedings, bail conditions, or protection orders.
In Toronto and some other Ontario jurisdictions, the IDVC allows a sole judge to address both the criminal domestic violence charge and related family law matters. This is designed to reduce conflicting orders, improve coordination, and lead to better outcomes for affected parties (spouses/intimate partners and children).
