For Ontarians facing domestic assault charges, no contact orders are the single greatest source of pain and frustration stemming from the case. These orders, which restrict communication between victims and the individual charged, can last for months or even years - even if the parties vehemently want them removed.
Contrary to popular perception, a surprising number of domestic charges are laid or prosecuted against the wishes of the complainant. These cases involve husbands and wives who want to return to family life; intimate partners who wish to resume their relationships; and Canadians who simply want to talk through their issues on their own terms.
This article provides a comprehensive overview of domestic no contact orders in Ontario. We explain where no contact orders come from; what they do; the role victims can play in reversing them; and, most important, the steps charged persons can take to remove or modify them. Together with our other extensive materials on the basics of Ontario domestic assault law, it forms part of my law firm’s continuing project of empowering Canadians by explaining their rights in plain English.
No contact orders constitute a "one size fits all" approach to governing contact between partners after a domestic charge. But not all domestic violence cases are alike, and in many instances the order is not only unwanted but a fresh source of mental, emotional and financial harm.
As a criminal lawyer specializing in domestic cases, I know first-hand how painful the process of responding to domestic charges can be. My law firm has represented hundreds of Ontarians facing domestic charges for the first time. We're proud of our track record of reuniting families, reconnecting partners and getting domestic charges dropped.
I hope this article helps couples who want to resume contact to better understand their rights, adjust their expectations, and work in the most effective manner toward achieving their goals.
No Contact Orders: Why One Size Does Not Fit All
In the domestic context, no contact orders are intentionally designed to put a relationship on ice. By hanging the threat of additional charges over the head of the person bound by them, they play a crucial role protecting victims of domestic abuse from unwanted contact by their abusers.
Because they are standard, no contact orders constitute a "one size fits all" approach to governing contact between partners after a domestic charge. But not all domestic violence cases are alike, and in many instances the no contact order is not only unwanted by the parties but a fresh source of mental, emotional and financial harm.
It comes as little surprise, therefore, that my domestic violence law firm receives at least a dozen calls weekly from men and women wanting to remove no contact orders. Most are wives, or women in domestic partnerships, who never wanted their husband or same-sex partner charged in the first place. Outraged that they cannot communicate with their loved one, they often rush to write the Crown or officer in charge begging to get the domestic charges dropped, or at least to permit contact – a course of action that can create more problems than it solves.
By far the majority of the Ontarians who call my domestic violence law firm to remove no contact orders are married men. These are often the main breadwinners in a family torn apart by domestic charges.
Others are victims or complainants who simply want the domestic no contact order to be removed for practical reasons. These are householders who would have no reason to be concerned for their safety if permitted to resume contact with their romantic partner. They have children to care for, properties to mend and bills to pay; some have health issues that need tending, or run a business with the man or woman on the other side of the domestic case. Although they may have mixed feelings about their partner, one thing they are absolutely clear about is their desire to communicate with them like a grown-up. To these men and women, the no contact order is nothing more than a source of financial and emotional aggravation.
By far the majority of the Ontarians who call my domestic violence law firm to remove no contact orders are married men. These are often the main breadwinners in a family torn apart by domestic charges. Many feel disoriented and powerless after being banished from their homes and told not to contact their spouse or children. Left to pick up the emotional pieces alone, men like these cite a host of reasons for wanting to remove the domestic no contact order: to help pay the bills, to assist with childcare, to nurse their ill partner or in-law, or simply to say sorry.
In my experience these men, like their romantic partners on the other side of the domestic case, entertain a host of misconceptions about the law of domestic assault in Ontario. Among the most common among these is whether, and how quickly, a no contact order can be varied.
Let’s look at that question now, beginning with the basics.
Are No Contact Orders Normal in Ontario Domestic Cases?
Yes. No contact orders are standard in Ontario domestic violence cases. Whether the victim supports the charge or not, once an individual has been arrested and charged, the police or the court will almost always impose a term of no contact between the parties. This order may also extend to children, or other individuals deemed to be witnesses by the police.
Where Do I Find the No Contact Order?
No contact orders are contained in one of two documents. If the charged person has been released by police, the no contact term will be contained on a document called an Undertaking or “Form 10”. If, on the other hand, a Judge or Justice of the Peace has released the accused after a bail hearing, the terms governing no contact will be contained on a document called a Release Order. Clients should read these documents carefully.
What Happens if I Violate a No Contact Order?
Whether contained on an Undertaking or Release Order, no contact terms carry the full force of law. This means that violating the no contact order can result in a new arrest and the laying of additional criminal charges.
The underlying reason for violating a no contact order will not matter to police investigating a breach. For example, the fact that a complainant initiated contact will not prevent the laying of additional charges.
Are There Exceptions to the No Contact Term?
Both Undertakings and Release Orders may contain exceptions to the no contact order. For example, they may permit contact through a mutually agreed-upon third party for childcare purposes. Perimeter restrictions often contain an exception to retrieve personal belongings. In any domestic case, therefore, the starting point should always be a careful review of the terms. If you’re unsure how to interpret the language contained in these documents, you should hire a domestic assault lawyer to assist you.
Hiring a domestic lawyer will not only help you to understand the terms governing your release, but will also boost your chances of obtaining a favourable result across all important aspects in your case – from lifting the no contact order to getting the domestic charges dropped.
Can Ontario Domestic No Contact Orders Be Removed?
Yes. Any term in an Undertaking or Release Order, including those governing no contact, can be modified or removed. This process must be commenced by the individual facing the charges (the victim is unable to apply, as they are not bound by conditions). Furthermore, the exact process for varying or removing a no contact order will depend on two factors:
form of the release (Undertaking or Release Order); and
the position of the Crown Attorney’s Office in relation to the request.
In the rest of this article, we examine these processes more carefully, including the role of the victim in the process; how long removing a no contact order can take; and the factors which impact on the likelihood of success.
The Role of the Victim in Removing Domestic No Contact Orders
Victims play a complex and, by many Ontarians’ standards, counter-intuitive role in domestic cases. Although their wishes can influence the course of a domestic prosecution, victims cannot prevent the laying of charges, compel the Crown to drop the case, or even decide whether a no contact order is lifted.
On the other hand, no contact orders are never reversed without the full support of the complainant. The reasons for this are obvious. Victims of domestic abuse should not have to endure unwanted contact or communication with their abuser. Therefore, if a complainant is opposed to modifying or removing a no contact order while a domestic charge remains before the courts, that is the end of the discussion. The order will not be changed, and clients are advised to move on from the issue.
Victims play a complex and counter-intuitive role in domestic cases. Although their wishes can influence the course of a domestic prosecution, victims cannot prevent the laying of charges, compel the Crown to drop the case or even decide whether a no contact order is lifted.
If, on the other hand, the complainant wishes to reconcile or otherwise resume contact with their intimate partner, this satisfies a basic precondition for modifying or removing the no contact order.
But this is by no means guaranteed. Once a complainant has determined that they wish to resume contact, what remains is a careful process of either negotiating the removal of the no contact order with the Crown Attorney’s Office, or convincing a Judge to do the same. In the course of this process, the input of the complainant will be read, reviewed and considered by lawyer representing the accused and the Crown or court.
Let’s now examine the forms that a complainant’s input can take.
The Best Way for Complainants to Help Remove a No Contact Order
Once a domestic violence charge reaches court, complainants are often invited to give their input on the case through victim services. Staffed by non-lawyers, victim services will contact the complainant from time to time to provide updates on the case and to discuss issues raised by accused person’s lawyer. This can include canvassing the complainant’s views on removing the no contact order.
In most cases, the input of the victim is summarized on a standard bullet-point form and left with the Crown Attorney’s Office to review on their own time.
As a domestic violence lawyer with over a decade in this area, experience has taught that there is better way for complainants to help remove a no contact order.
Although victim services plays an important role in the criminal justice system, they do not represent victims as a lawyer would. Victim services simply mediates between the Crown and the victim, offering emotional support and information along the way.
If you are a complainant and you want to help your partner lift a domestic no contact order, you should strongly consider hiring a domestic violence lawyer. A domestic violence lawyer is in the best position to listen to your story in detail, understand the scope and content of the police investigation, and take the most appropriate and effective steps to advance your interests. Assuming the charged party is also represented by a competent lawyer, this can substantially increase the likelihood of modifying or lifting the no contact order.
Although victim services plays an important role in the criminal justice system, they do not represent victims as a lawyer would. Victim services simply mediates between the Crown and the victim, offering emotional support and information along the way.
True representation – designed to intelligently advance a client’s interests – does not come from victim services, but from counsel. As a former Crown Attorney myself, I know that when a complainant retains their own lawyer, this signals that they won’t take the case sitting down. Rather than wait for a phone call, or having their input reduced to bullet points, complainants like these take the bull by the horns.
How to Remove Domestic No Contact Orders
So far we have discussed the source of domestic no contact orders (Undertakings and Release Orders); the most important variable controlling whether they can be modification or removed (complainant input); and the reason why complainants should retain their own counsel if they want to maximize the chances of success.
Now let’s examine the actual process for removing a domestic no contact order, beginning with more questions and answers about the process.
How Are Domestic No Contact Orders Removed?
The process for removing a domestic no contact order usually begins by submitting an application to the Crown Attorney’s Office. This application must be completed by the individual facing the domestic charges or their lawyer.
Once the application is submitted, it will be reviewed by a Crown Attorney who will make a preliminary determination about whether they would allow, or consent, to the variation. During this process, the lawyer representing the accused will make representations concerning why the no contact order should be modified.
If the Crown determines that contact between the parties can be restored, they will then seek the input of the complainant. As discussed earlier, this is typically done by enlisting the help of victim services, who will call the complainant to confirm his or her wishes. In cases where the complainant has retained their own domestic assault lawyer, the Crown should conduct those discussions with counsel instead.
There is no rule of thumb concerning how quickly a no contact order can be removed. Generally, however, unless clients bring a special motion to force the issue, removing a no contact order won’t be possible until at least the first court appearance.
If the complainant is supportive of lifting or varying the no contact order, the Crown may then authorize the application. If the original form of release is an Undertaking, any modifications will take effect as soon as the Crown signs and files the paperwork. If the application concerns a Release Order, then a Judge or Justice of the Peace will also need to approve the variation, together with any sureties who may be listed on the release.
What Happens if the Crown Denies a Bail Variation?
If the Crown denies the application to vary or lift the no contact order, individuals facing domestic charges may wish to consider filing a motion to have their Undertaking or Release Order reviewed by a judge. This process, which I describe in greater detail below, requires significant preparation and legal knowledge. It should only be attempted with the assistance of a lawyer who understands domestic cases fully. Further, it is highly advisable that the complainant retain their own lawyer prior to bringing motions of this type.
Can a Victim Apply to Remove a No Contact Order?
No. Although victims play a central role in domestic cases, they are not “parties” to the legal proceedings. This means they do not have the authority, or standing, to initiate applications to the vary the terms of an accused person’s release.
How Quickly Can I Get a No Contact Order Removed?
There is no rule of thumb concerning how quickly a no contact order can be removed. Generally, however, unless clients bring a special motion to force the issue, removing a no contact order won’t be possible until at least the first court appearance. That is because the process of requires a court file, which the police don’t often generate until that time.
Why is it So Hard to Remove a No Contact Order?
Clients facing domestic charges should recognize that the removal of a domestic no contact order is not a right. It is an exceptional request that cuts against the standard legal rule that an accused should not be allowed speak with witnesses or victims.
Even in domestic cases where the victim wants the charges dropped, the modification or removal of a no contact order remains completely discretionary. The mere desire of a complainant to resume contact is not a sufficient basis to grant the request. Nor are pressing practical concerns, like childcare or finances. In fact, some Crown Attorney’s Offices in Ontario flatly reject modifying any domestic release conditions, citing a "policy" that this law firm has never seen.
Clients facing domestic charges should recognize that the removal of a domestic no contact order is not a right. It is an exceptional request that cuts against the standard legal rule that an accused should not be allowed speak with witnesses or victims.
The exceptional nature of removing domestic no contact orders underscores the importance of hiring a criminal lawyer who specializes in Ontario domestic assault cases. The timing, foundation, framing, and approach to negotiating this exceptional remedy is best left to the skill and expertise a lawyer who understands this challenging area of the law.
How Do I Increase My Chances of Lifting the No Contact Order?
There are multiple factors that can impact not only the timing but the chances of successfully varying the terms of a domestic no contact order. Among the most important of these are:
the seriousness and quantity of the allegations;
the complainant’s wishes;
whether the client has a prior record for domestic violence;
whether the client is represented by the best criminal lawyer for their case;
whether the complainant is represented by counsel;
the particular Crown and Crown Attorney’s Office reviewing the case; and
whether the client is prepared to bypass seeking Crown approval by filing a special court motion.
As our final topic, let’s examine this this last variable.
What is the Special Motion for Removing No Contact Orders?
It is not always necessary to obtain the Crown’s approval to remove a no contact order in domestic cases. If the Crown refuses to remove a no contact term contained on an Undertaking, clients can apply for a hearing before a Judge to review the term. If, on the other hand, the original release was by a judge, they can seek to have their terms reviewed in the Ontario Superior Court of Justice.
Assuming there are good reasons to seek the removal of a no contact order, filing a court motion is the single most powerful instrument in the client’s total control for accelerating the process.
These processes are highly technical and time-intensive. They should only be attempted by individuals represented by an experienced domestic assault lawyer, and it is advisable that he complainant have their own lawyer as well. The motion involves an actual court hearing where, in some cases, the accused and victim give evidence. The process also requires the preparation of a written application materials, often with supporting documentation.
Assuming there are good reasons to seek the removal of a no contact order, filing a court motion is the single most powerful instrument in the client’s total control for accelerating the process. The motion leapfrogs the Crown and puts the decision squarely in the hands of the court. With effective representation, these applications are often highly successful.
Wrapping Up: Three Simple Rules to Follow.
As a domestic violence lawyer, I understand how frustrating domestic no contact orders can be. I am mindful of the ways our criminal justice system can sometimes feel like it is infantilizing grown-ups by telling them what they can and cannot do, even if both sides in a case disagree.
Having examined the many nuances of the process is in this article, I want to assure the men and women in Ontario facing domestic cases that removing a no contact order is possible. My law firm has done it dozens, if not hundreds, of times. But the process requires more than a snap of the fingers or an emotional appeal to the Crown: it takes patience, the right lawyer, and a willingness to do what your domestic violence lawyer advises.
Follow those three simple rules, and in my experience, your chances of success will blossom. As always, please feel free to contact my domestic violence law firm if you or a loved one is facing charges in Ontario.