When should I take action to protect myself from an abusive spouse?

See when it is most appropriate to take action against your spouse's abuse, as Herschel Fogelman, a Toronto mediator and family lawyer, answers that frequently asked question.

By Herschel Fogelman
July 12, 2006
ON FAQs/Domestic Violence and Abuse

There is only one answer to this question: as soon as you experience the abuse.

There are essentially two options. The first is to have recourse to the civil justice system, or in other words, to bring a court proceeding to seek a restraining order. The second is to have recourse to the criminal justice system, or in other words, to call the police. In my view, the better course of action is to immediately report any incident to the police, for the following reasons:

  1. The police have a mandate to lay criminal charges in domestic situations. They have very little discretion in this regard. Once the charge is laid, the usual course is for the accused to seek bail pending a hearing. The usual bail terms include staying away from the accuser or victim.
  2. A breach of the terms of bail is a separate criminal offense for which the accused may be arrested and charged. If that occurs, it will be even more difficult for the accused to make bail the second time around.
  3. The police tend to respond faster and with more vigilance to breaches of criminal sanctions than to breaches of civil sanctions. A call to the police saying that a person has breached a civil restraining order may not result in much of anything.
  4. Under the Family Law Act, the court has the power to restrain a person from molesting, annoying, or harassing another person. Most, if not all, of these orders are time-limited. Any breach of this section is deemed a criminal offense that is punishable. However, the trick is getting the police to act on it. A party may register their civil restraining order in the central police database, which should allow the person to have recourse to the police in the event of a further incident. My experience has been that this system does not afford a person with any real protection, which is unfortunate.

It's worth pointing out that statistically, a person reports abuse to the police only after he or she has been the victim of repeated assaults -- on average, more than 30 times. My advice is not to wait for the abuse to continue, as it likely will, and to take action the first time. Hopefully, it will also be the last time. 

Herschel Fogelman practices family law with Basman Smith in Toronto. He is also a mediator and was a script consultant to the television show The Associates.

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July 12, 2006
Categories:  FAQs

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