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A domestic violence charge can shape a family court case long before the criminal case ends. Bail conditions can move one parent out of the home, and family courts must now weigh family violence and any criminal order when they decide parenting time, decision-making responsibility and who stays in the home. A conviction adds more: supervised parenting time, child protection involvement and, in rare cases, a higher spousal support award. Here is how the two systems interact in Ontario, and what to do first. For the criminal side, see our domestic assault defence page.
Sadly, domestic disputes are quite common in our society. Whether the accusations of domestic violence are true or not, the consequences of such allegations can wreak havoc on a family’s dynamics for years to come.
Our lawyers work closely with a group of trusted family law lawyers to ensure that clients’ interests are protected both in the criminal courts and in the family courts. This article began as a contribution from Toronto family law lawyer Andrew Feldstein, who provided insight into how a criminal charge or conviction for a domestic violence related crime can affect a person’s rights in family court. We have updated it to reflect the law as it now stands, including the new parenting language that replaced “custody” and “access”.
- The test
- Best interests onlyDivorce Act s. 16; Children’s Law Reform Act s. 24
- Family violence
- A listed factorWeighed under s. 16(4) and s. 24(4), charged or not
- Bail conditions
- Obey them firstOnly the criminal court can change them
- Partner violence
- One step higherCriminal Code s. 263.1 raises the maximum sentence
What happened to “custody” and “access”?
When this article was first written, family courts spoke of custody and access. On March 1, 2021, amendments to the federal Divorce Act and Ontario’s Children’s Law Reform Act replaced those words with “decision-making responsibility”, “parenting time” and “contact”, all set out in a “parenting order”. The change was more than a new label: both statutes now define family violence and require courts to weigh it. Older custody and access orders still stand; the new rules apply when they are changed.
| Before March 1, 2021 | Now | What it covers |
|---|---|---|
| CustodyDivorce Act, Children’s Law Reform Act | Decision-making responsibility | Significant decisions about the child’s health, education, culture, language, religion and major activities |
| Access (for a parent) | Parenting time | Time the child spends in a parent’s care, whether or not the child is physically with that parent the whole time |
| Access (for others, such as grandparents) | Contact | Time with someone who is not a parent, under a contact order |
| Custody and access order | Parenting order | The order that allocates parenting time and decision-making responsibility |
Sources: Divorce Act s. 2(1) and ss. 16–16.5; Children’s Law Reform Act ss. 18 and 20–28; Justice Canada, The Divorce Act Changes Explained.
A common scenario: a charge and a separation on the same night
Often, the laying of domestic violence charges will coincide with the separation of two spouses. Let’s consider the following scenario:
A husband and wife have been married for 7 years. They have two young children, a daughter, age 5, and a son, age 3. Over the last two years, their relationship has slowly deteriorated, becoming increasingly antagonistic; in fact, it is not uncommon for the couple to engage in screaming matches that can be heard by neighbours.
During one particularly aggressive confrontation, the wife feels threatened by the husband and calls the police, alleging domestic violence. The husband is picked up by the police and brought to the station. There, he is charged with uttering a threat to cause death (Criminal Code s. 264.1) and his bail is set at $2,000. The terms of his bail are such that he is not allowed to return to the matrimonial home or contact his wife directly. He is only allowed to communicate with a third party to arrange parenting time (what used to be called access) with his children, as no child abuse was alleged.
The next day, the wife contacts a lawyer, who sends a letter to the husband stating that the wife has hired legal representation and will be seeking a divorce. The wife also informs the husband that she will be seeking exclusive possession of the matrimonial home, as well as an order prohibiting him from directly or indirectly contacting or communicating with her pursuant to s. 25.1 of the Family Law Act. She could also ask for a restraining order under s. 46 of that Act.
Since July 17, 2026, the charge could be more serious. Where an offence involves violence used, threatened or attempted against an intimate partner, including a current or former spouse, common-law or dating partner, the Crown can now charge it under Criminal Code s. 263.1. That raises the maximum one step: a threat to cause death carries up to five years on indictment, but up to ten when charged as intimate partner violence.
This example is a husband accused by his wife because that is the most common pattern in police-reported cases: Statistics Canada reports that nearly 8 in 10 victims of police-reported intimate partner violence in 2024 were women and girls (The Daily, October 28, 2025). Of course, there are instances where abusers have been wives, and everything below applies equally whichever spouse is charged.
How do family courts weigh family violence in a parenting order?
One test governs every parenting order: the child’s best interests, with safety first.
Both the Divorce Act (for married spouses who divorce) and Ontario’s Children’s Law Reform Act (for everyone else) define family violence broadly: conduct that is violent or threatening, a pattern of coercive and controlling behaviour, or conduct that makes a family member fear for their safety, and, for a child, direct or indirect exposure to it. It does not have to be a criminal offence. In weighing it, the court must take into account:
- the nature, seriousness and frequency of the family violence and when it occurred;
- whether there is a pattern of coercive and controlling behaviour;
- whether it was directed at the child, or the child was directly or indirectly exposed to it;
- the physical, emotional and psychological harm or risk of harm to the child;
- any compromise to the safety of the child or another family member;
- whether it causes the child or another family member to fear for their safety;
- any steps taken by the person to prevent further violence and improve their ability to care for the child.
Two further rules matter to anyone facing a charge. The court must consider any civil or criminal proceeding, order, condition or measure relevant to the child’s safety (Divorce Act s. 16(3)(k); Children’s Law Reform Act s. 24(3)(k)), so bail conditions and peace bonds are before the family judge. But past conduct is considered only if it is relevant to parenting (s. 16(5); s. 24(5)). In Ontario, a parent who applies for a parenting order must also disclose any current or past criminal proceedings in a sworn affidavit (Children’s Law Reform Act s. 21(4)(b)).
How can a domestic violence charge affect parenting before any conviction?
When a spouse is faced with charges of domestic violence, the fallout can be life-altering, regardless of whether a conviction results or not.
While the husband in the aforementioned scenario may never be found guilty of the allegations against him (or any other domestic violence charges), the charge and bail conditions alone may have a negative, long-standing impact on his ability to communicate with, spend time with, and parent his children.
The status quo: who has the children now
When one parent is removed from the matrimonial home as the result of an actual or alleged domestic dispute, it can leave a lasting impact on how parenting time and decision-making responsibility are arranged. This results from the fact that the accuser spouse usually gets the children in their day-to-day care (what used to be called de facto custody) and de facto exclusive possession of the matrimonial home, sometimes regardless of who has had the role of primary caregiver in the past.
Where one parent has the children in their care, the other parent’s position is affected. According to section 20(4) of the Children’s Law Reform Act (CLRA), if the parents live separate and apart and the child lives with one of them with the other’s consent, implied consent or acquiescence, the other parent’s right to exercise decision-making responsibility, but not their entitlement to parenting time, is suspended until a separation agreement or court order provides otherwise. (Before 2021 this section spoke of the parent’s “entitlement to custody, but not access”.)
Accordingly, a parent who is ordered to leave the matrimonial home may lose the ability to exercise decision-making responsibility for any children of the marriage until a court order or agreement restores it.
Moreover, the parent who has the children in their care is at an advantage in obtaining a final parenting order. Although a court will look overall at what parenting arrangement best reflects a child’s best interests, the child’s need for stability and the history of care are listed factors (Divorce Act s. 16(3)(a), (d); Children’s Law Reform Act s. 24(3)(a), (d)), and the courts, by and large, look to maintain the status quo in making their final order. Accordingly, where one parent has had the children or an interim parenting order, the courts generally favour stability and continuity, and will be reluctant to disrupt the existing state of affairs.
So, it is important to deal with your rights as soon as possible after your release from custody.
When the systems collide: Shaw v Shaw
In the matter of Shaw v Shaw, 2008 ONCJ 130, Justice Pugsley discussed the detrimental impact that the interaction between the family and criminal justice systems can have on a family involved in the family law system. Sometimes, as in this case, a parent may exploit this interaction, causing irreparable harm to the children involved. In that case, a very minor assault by the wife led to severe bail restrictions, including restrictions on the wife’s ability to access the matrimonial home or contact the father or her children. The father then obtained an interim custody order without notice to her; Justice Pugsley set it aside.
Ontario’s prosecution policy on intimate partner violence remains firm: the Crown Prosecution Manual says it will usually be in the public interest to proceed with these prosecutions, and a prosecutor must not withdraw charges solely because the complainant asks (Directive D-23). That firmness is appropriate, but there are many minor cases where the children’s best interests are negatively impacted by the accuser parent’s ability to obtain a favourable order by presenting only one side of the story to the court. The same directive now tells prosecutors to have regard to any existing family court orders when they recommend bail conditions.
If you feel yourself going over the edge, it is a better idea to leave the house and go for a walk.
Bail conditions, peace bonds and family court orders: which one rules?
Criminal and family orders are made by different courts for different purposes, and they often point in different directions. A family order does not override a bail condition: where a Criminal Code order and a provincial order conflict, the criminal order prevails to the extent of the conflict (Justice Canada, Making the Links). Until bail is changed, obey the bail condition even if a family order or the other parent says otherwise.
Bail conditions can only be changed through the criminal court: on the written consent of the accused, the prosecutor and any sureties (s. 519.1), or by a bail review in the Superior Court (s. 520). A common change is an exception allowing contact “in accordance with a family court order”, which s. 515(4.2) permits. Family judges, for their part, must consider whether criminal orders, recognizances or protection orders are pending or in effect (Divorce Act s. 7.8).
Where the accused has a prior conviction or discharge for violence against a partner, or was on a peace bond for a partner at the time, the accused must show why they should be released rather than the Crown showing why they should be held (s. 515(6)(b.1)). For more, see bail hearings and failing to comply with bail.
Four kinds of order can keep a parent away from home or family:
Bail conditions
Criminal Code s. 515
For any charge involving violence, including against a partner, the court must consider no-contact and stay-away conditions, and electronic monitoring if the Crown asks (s. 515(4.2), (4.3)). They stay in place until the charge is dealt with or the conditions are changed. Breaching one is a separate offence carrying up to two years (s. 145(5)).
A peace bond
Criminal Code s. 810
A promise to keep the peace for up to 12 months, often with no-contact conditions for the partner and children (s. 810(3), (3.2)). It is not a conviction, but a family court must still consider it (Divorce Act s. 16(3)(k)). A breach carries up to four years (s. 811). See peace bonds.
A family restraining order
FLA s. 46 · CLRA s. 35
A family court can restrain a spouse, former spouse or anyone who has lived with the applicant from contact or from coming near set places, where the applicant has reasonable grounds to fear for their own or a child’s safety. The Act sets no penalty of its own; a breach can be charged as disobeying a court order (Criminal Code s. 127).
Exclusive possession and no-contact
FLA ss. 24, 25.1
A family court can give one spouse the matrimonial home and, while the application is pending, order a party not to contact the other where that is needed for the case to be dealt with justly. Breaching an exclusive possession order is an offence, and police can arrest without a warrant (s. 24(5), (6)).
Exclusive possession and the sale of the matrimonial home
In addition to having the children in their care, a spouse who alleges violence may also obtain an order for exclusive possession of the matrimonial home which may, in turn, affect how and when property division can occur.
Under s. 24 of the Family Law Act, a court is authorized to grant possession of the matrimonial home to one of the spouses. Relevant factors in granting such an order include, but are not limited to the best interests of the children, including the effects of a move and the wishes of the children, as well as any violence committed by a spouse against the other spouse or the children (s. 24(3), (4)).
If a spouse obtains an order for exclusive possession, the accuser spouse has established the status quo such that they have sole possession of the matrimonial home. Once that is established, the courts are wary of disturbing the status quo in the interim period unless it is in the children’s best interest.
Furthermore, contravention of an order for exclusive possession carries with it a hefty punishment: under s. 24(5), a first offence carries a fine of up to $5,000, up to three months in jail, or both, and a second or later offence up to $10,000, two years, or both.
While a court may award an order for exclusive possession in many situations not involving violence or the threat thereof, the courts can sometimes be less forgiving where criminal charges have been laid. For instance, where abuse is alleged, a court may allow exclusive possession despite the cost of maintaining two households on a limited income (Wilson v Wilson).
Additionally, a court may not force the sale of the matrimonial home where it imposes unnecessary hardship on the accuser spouse (T (B) v T (G), 1997). In other instances, a court may grant an extended exclusive possession order (3 years, for example) with the option to the accuser spouse to purchase the accused spouse’s interest in the matrimonial home for a portion of that spouse’s net equity (Sloggett v Sloggett, 1989).
Finally, a court may hold an accused spouse liable for mortgage payments, hydro, and telephone expenses relating to the matrimonial home (s. 24(1)(e)). Although the person with exclusive possession is generally responsible for such expenses, the presumption may be rebutted by reviewing the budgets of each spouse, the amount of support awarded, and the ability of the person in possession of the home to pay such expenses (Rintaluhta v Rintaluhta, 1987).
Moreover, the accused spouse may be affected when it comes time to sell the matrimonial home.
While joint owners in a matrimonial home have a prima facie right to the partition and sale of that home under the Partition Act (s. 2), the court has a narrow window in which to exercise its discretion to refuse or delay partition.
What the charges and breaches carry
Maximum sentences, checked against the current Criminal Code and Family Law Act. Abusing an intimate partner is also a statutory aggravating factor on sentencing (Criminal Code s. 718.2(a)(ii)).
| Charge or breach | Maximum | Other route or repeat |
|---|---|---|
| Uttering a threat to cause deathCriminal Code s. 264.1(2) | 5 years | Summary conviction |
| The same threat, against an intimate partners. 263.1(3)(b), since July 17, 2026 | 10 years | Summary conviction |
| Breaching a bail conditions. 145(5) | 2 years | Summary conviction |
| Breaching a peace bonds. 811 | 4 years | Summary conviction |
| Disobeying a court order, such as a restraining orders. 127 | 2 years | Summary conviction |
| Breaching an exclusive possession orderFamily Law Act s. 24(5) | $5,000 / 3 months | Repeat: $10,000 / 2 years |
Consequences of an actual conviction for domestic violence
Supervised parenting time
If, in the end, a spouse is convicted of assault or any other crime against his or her spouse or children, any family law order made post-conviction will reflect this fact.
In addition to a term in prison, a parent who has been convicted of violence against a member of their immediate family may be limited to supervised parenting time (formerly supervised access), at least on an interim basis. Section 34 of the Children’s Law Reform Act (CLRA) permits a court to direct a consenting person, a children’s aid society or other body to supervise decision-making responsibility, parenting time or contact; a divorce court can order the same (Divorce Act s. 16.1(8)).
Right now, Ontario has a number of Supervised Access Centres in place to ensure that parents and other guardians have appropriately supervised visits and exchanges with their children.
Generally speaking, supervised parenting time is the exception and is avoided if at all possible in the best interests of the child. Nevertheless, where a parent has been violent to a spouse or the child, it may be necessary.
Child protection
A children’s aid society may become involved whether or not there is a conviction. Anyone, including police and prosecutors, who has reasonable grounds to suspect that a child is in need of protection must report it (Child, Youth and Family Services Act, 2017, s. 125), and Ontario’s prosecution directive tells prosecutors to report cases of intimate partner violence where they have that suspicion. Emotional harm, and a risk of emotional harm, from a parent’s actions are grounds for protection (s. 74(2)(f), (h)). A child protection order or agreement is another order a family court must consider (Divorce Act s. 7.8).
Spousal support
Where entitlement to spousal support is demonstrated, the courts will use the Spousal Support Advisory Guidelines (SSAG) to determine the amount and duration of support.
The SSAG provide the court with low, medium, and high ranges of support depending on the spouse’s income. Courts will take into account a number of factors in deciding how to apply the ranges including: the strength of the compensatory claim; the recipient’s needs; age, number, needs and standard of living of children; needs and ability to pay; property division and debts; and self-sufficiency incentives.
The SSAG do not recommend that judges take into consideration the conduct of the payor spouse, and the law is stricter than the original version of this article suggested. Under the Divorce Act, the court “shall not take into consideration any misconduct of a spouse in relation to the marriage” (s. 15.2(5)). What a court can consider is the consequences: if abuse left the other spouse too unwell to become self-sufficient, those consequences are relevant to the right to support, its duration and its amount (Leskun v Leskun, 2006 SCC 25, para. 21). In that way, a conviction can still push support toward the high end of the range where a parent has wrongly treated their spouse, but through its effects, not as punishment.
Finally, for spouses whose support is decided under Ontario’s Family Law Act, in egregious cases where a spouse’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship” the court may, under s. 33(10), consider conduct in determining the amount (but not entitlement to) spousal support. That being said, application of s. 33(10) requires an extremely high threshold, and even long-term domestic violence may not be enough (Melanson v Melanson, 1991).
Not a Canadian citizen? A domestic violence conviction can also carry immigration consequences, which we cover separately in immigration consequences of a criminal charge.
First steps for a spouse who has been charged with a crime
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Retain a criminal lawyer and a family lawyer
When a spouse has been charged with a criminal offence, as in the above mentioned scenario, the first step is for that spouse to retain both a criminal lawyer and a family lawyer.
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Get parenting time decided by a family court, not by bail
While a family lawyer may not be able to do much about the family law matters until the criminal case has been resolved, he or she should attempt to get an order stipulating that parenting time with the children be determined in accordance with an order from a family court and not by the spouse’s bail conditions. In practice, that means the criminal lawyer asking the Crown or the court to add an exception to the bail conditions for contact “in accordance with a family court order” (Criminal Code ss. 515(4.2), 519.1, 520).
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Put the full picture before the family court
Because a family court will likely engage in a more thorough evaluation of the domestic situation and the best interests of the children, an accused may fare better in front of a family court. In any event, a family court order is likely to be less harsh than bail conditions. Be candid: the parenting affidavit must disclose the criminal proceeding (Children’s Law Reform Act s. 21(4)(b)).
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Comply with every order while the case is open
A breach of bail is a new charge (s. 145(5)) and puts the burden on the accused to justify release at the next bail hearing (s. 515(6)(c)). Keep all contact within the terms, even when the other parent invites more.
If your family has been affected by domestic violence and you or your spouse is facing family law related issues arising from a domestic incident, speak with a family lawyer as well as a criminal lawyer.
Alternatively, please read defending a domestic assault allegation for more information on domestic violence cases in criminal court.
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. Our lawyers defend domestic charges with the family case in mind.
A nationally recognized defence firm
An award-winning reputation in criminal defence: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
Bail terms that leave room for family
We ask early for bail conditions that let a family court decide parenting time, and we pursue variations when the family case moves. See how we defend domestic assault charges.
Working alongside family counsel
Our lawyers work closely with trusted family law lawyers so that what is said and filed in one court does not damage the client’s position in the other.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
Domestic Violence and Family Court — Frequently Asked Questions
Short answers to the questions people ask when a criminal charge meets a family case.
Parenting and the family court
Can a domestic violence charge affect parenting time before any conviction?
Yes. Bail conditions often move the accused parent out of the home and limit contact, and the parent who keeps the children in their day-to-day care gains a status quo that family courts are reluctant to disturb. Family courts must also consider any criminal proceeding or condition relevant to the child’s safety (Divorce Act s. 16(3)(k); Children’s Law Reform Act s. 24(3)(k)).
Are “custody” and “access” still used in Ontario?
No. Since March 1, 2021, the Divorce Act and the Children’s Law Reform Act speak of decision-making responsibility, parenting time and contact, set out in a parenting order. Orders made under the old words remain valid.
Does family violence have to be a crime for a family court to consider it?
No. Both statutes define family violence to include threatening conduct, coercive and controlling behaviour and conduct that causes fear, whether or not it is a criminal offence, and, for a child, direct or indirect exposure to it.
What is supervised parenting time?
Visits or exchanges supervised by a consenting person, a children’s aid society or a supervised access centre (Children’s Law Reform Act s. 34; Divorce Act s. 16.1(8)). It is the exception, but may be ordered where a parent has been violent to a spouse or child.
Bail, orders and the home
Can a family court order override my bail conditions?
No. Where a Criminal Code order and a provincial family order conflict, the criminal order prevails. Bail can be changed only through the criminal court, on consent (s. 519.1) or by a bail review (s. 520), often by adding an exception for contact under a family court order.
What is the difference between a peace bond and a restraining order?
A peace bond is a Criminal Code recognizance under s. 810, lasting up to 12 months, and breaching it carries up to four years. A restraining order is made by a family court under s. 46 of the Family Law Act or s. 35 of the Children’s Law Reform Act. Neither is a criminal conviction.
Can I be kept out of my own home?
Yes. Bail conditions can bar you from the home, and a family court can grant your spouse exclusive possession of the matrimonial home regardless of ownership (Family Law Act s. 24), considering, among other things, any violence against the spouse or children. Breaching an exclusive possession order is an offence.
What is the new intimate partner violence offence?
Since July 17, 2026, an offence involving violence used, threatened or attempted against a current or former spouse, common-law or dating partner can be charged under Criminal Code s. 263.1, which raises the maximum sentence one step, for example from five to ten years for a threat to cause death.
Money and next steps
Does a domestic violence conviction increase spousal support?
Not as punishment. Under the Divorce Act the court cannot consider misconduct itself (s. 15.2(5)), but it can consider its consequences, such as abuse that leaves the other spouse unable to work (Leskun v Leskun, 2006 SCC 25). Under Ontario’s Family Law Act, only conduct that is an obvious and gross repudiation of the relationship affects the amount (s. 33(10)).
What should a spouse charged with a crime do first?
Retain both a criminal lawyer and a family lawyer, comply with every bail condition, and ask for bail terms that let a family court decide parenting time.
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Facing a domestic charge with a family case ahead? Talk to Daniel Brown Law
The first bail conditions often set the pattern for the family case. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3