FREQUENTLY ASKED
QUESTIONS

What is Canadian law?

Many immigrant women are fearful of any police involvement. In most cases, this is because of past experiences with the police in their home countries, especially if the woman is from a country where the police are symbols of human rights violations.

For many women it is important to know what Canadian police can do.

 

What are the signs of abuse?

Click here to review the signs of abuse.

 

What happens when the police become involved?

The police respond to and investigate all complaints of wife assault.

The police must talk to you and your partner separately and get a written statement from each of you. The police should arrest your partner if:

• it is likely that he will continue the assault on you, or
• there are other reasons for arrest, for example, if your partner has assaulted you with a weapon or injured you.

The police officer must tell you what help is available in your community.

The police may charge your partner with assault.

The police have some flexibility on whether to lay a charge. In cases of family violence, the police should lay charges where there are reasonable grounds to believe that there has been an assault. The police can lay charges even if you do not want them to. If the police do not lay charges and you think that they should, you can speak to the senior officer in charge.

If the police do not lay an assault charge, you can lay one. You must go to the court office and ask to see a Justice of the Peace (JP). If you have not already talked to the police, the JP may suggest you do so. The JP, however, must allow you to lay the charges if you want to. Usually it will only be necessary for you to lay charges in cases of common assault. In other cases of assault, there is usually enough evidence for the police to lay the charge.

In some provinces the police can apply to court on your behalf for a protection order. The application can be made at any time of the day or night. If the application is granted it takes effect immediately.

 

What is the procedure once you have laid charges?

If you laid the charges (rather than the police) you can withdraw the charges by informing the court office where you laid the charges.

If the police laid the charge, you cannot insist that they withdraw it. When the case goes to court you may be required as a witness for the Crown. If so, you will receive a subpoena. A subpoena is a court order telling you when to be in court.

The Crown presents the evidence against a person accused of breaking a criminal law. The lawyer who represents the Crown is called the Crown Attorney.

 

Can you withdraw charges?

If you do not obey the subpoena, the Crown attorney may withdraw the charges, or ask the judge to issue a warrant for your arrest, or proceed with the case. The fact that you and your spouse have worked out your problems is not by itself enough to have the Crown Attorney drop the charges.

 

How should I prepare for trial?

Get a copy of your statement and read it over.

If you made any notes at the time of the assault, ask the Crown Prosecutor if you can bring them with you to court.

Go over the events in your mind and try to place them in order. Make sure you remember the date, time, and place of the assault.

You can arrange a meeting with the Crown Prosecutor before the trial.

Let the Crown Prosecutor know ahead of time if you need a translator or an interpreter.

Take with you the subpoena and any other important document to the meeting with the Crown Prosecutor.

 

Who gets child custody?

Custody refers to legal guardianship of children. The law assumes at first that both parents have custody of their children.

You may want an order for interim (short-term) custody in an emergency situation when you have left your spouse and taken the children with you.

Interim custody is a temporary custody order that lasts until a judge makes a final decision on custody.

You have to apply to court for an order to change the normal situation of both parents having custody of the children.

If you can, make some preparations before you leave, for example, save some money for a lawyer and get some legal advice.

If you do not get an interim custody order and you have not let your spouse see the children, you can be charged with kidnapping (criminal abduction) of the children.

To avoid the possibility of criminal charges, get an interim custody order as soon as possible after leaving.

Get legal advice from a lawyer who practices family law.

The court can make an interim custody order on very short notice, that is, within 24 hours.

When making a decision about custody, the judge will look at what is best for the child(ren). Therefore, be prepared to show why the children should be with you.

For more information and frequently asked questions on issues of custody, please see the Facts: Law and Abused Immigrant Woman

 

What is a restraining order?

The civil courts make restraining orders. These courts also deal with divorce and custody. If you are going to be asking for custody of your children or getting a divorce, it is handy to seek a restraining order from the same court. A request for a restraining order can be made at the same time as a request for interim custody. It is also possible to apply to court for a restraining order alone.

Your lawyer can get a restraining order very quickly — often within 24 hours of meeting with you. However an application can only be made during normal court hours. It can be done without notifying the person against whom you need the order (called an ex parte application).

You do not have to give evidence in court, but just make a written statement under oath (called an affidavit) explaining why you need a restraining order.

If the order is granted without the person named in the order being present, the court will set a date in the near future for the order to be reviewed. The other person will then have an opportunity to state if they object to the order. If he is unsuccessful or does not show up to court, the order will be made for a fixed period of time. You can request for an order to be renewed when it runs out.

The restraining order can say exactly what kind of protection you and your children need. It can name places such as schools or your workplace and forbid your abuser from going there. The order can also state that the police shall arrest a person who breaks the terms of a restraining order. If the power to arrest is clearly stated in the order it may remove any uncertainty by the police in an emergency situation.

Although you can apply for a restraining order yourself, it is easier to ask a lawyer to help you.

Hiring a lawyer can be expensive, but you may be able to get help from Legal Aid. If you are hiring a lawyer yourself be sure to use a lawyer who practices in family law.

If you are not accepted for Legal Aid, talk about your financial situation with your lawyer. She or he may be able to set up a payment plan for you. Be sure to ask your lawyer to send you bills at regular periods so that you do not get a big bill at the end.

Once you have the restraining order, carry a copy with you at all times. Also, leave a copy at your children's school or day-care. If the abuser breaks the order and tries to approach you, you may have to call the police. If you can show the police a copy of the order it will make it easier for them to arrest the abuser.

Even if you have a restraining order, you should still take steps to keep yourself and your children safe.

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other programs available at COSTI.