Marital sexual assault is a severe crime in Canada. You have the right to seek an immediate, emergency restraining order in an Ontario family court while simultaneously pressing criminal charges. This form of extreme family violence heavily impacts the abuser’s access to parenting time and spousal support.
Experiencing sexual violence within a marriage is a deeply traumatic event that many survivors hesitate to report. Whether you live in Toronto, Ottawa, or Mississauga, it is crucial to understand that there is absolutely no “marital exemption” for sexual assault under Canadian law. Forcing a spouse into non-consensual sexual activity is an indictable offence or a summary conviction, treated just as seriously as an assault by a stranger. The Ontario family justice system recognizes this trauma and offers immediate protective measures.
When a marriage involves this level of abuse, navigating the legal aftermath requires a careful approach. 💔 You do not have to wait for a criminal conviction to protect yourself in family court. Judges at the Superior Court of Justice and the Ontario Court of Justice will evaluate the risk to your safety and can issue binding orders to keep your abusive spouse away. Understanding how criminal proceedings overlap with family law is essential for securing your physical safety and your financial future.
Step-by-Step Process in Ontario
Leaving an abusive marriage requires a strategic and safe exit plan. Whether you are in Hamilton, London, or a rural community, the legal process generally involves these critical steps.
Step 1: Ensure Immediate Physical Safety
Your first priority must be your physical safety and the safety of your children. If you are in immediate danger, call 911 or contact your local police service. You can also reach out to specialized sexual assault centres or domestic violence shelters across Ontario. These local agencies can provide emergency housing, trauma counselling, and guidance on how to safely navigate the next legal steps without alerting your spouse.
Step 2: Seek Medical Care and Document Evidence
If the assault happened recently, go to a local hospital, such as the Women’s College Hospital in Toronto, which offers specialized Sexual Assault and Domestic Violence Care Centres. 📁 They can administer a forensic exam, provide medical care, and document your injuries. Even if you choose not to involve the police immediately, having these secure medical records can be powerful evidence later in both criminal and family court proceedings.
Step 3: Apply for an Emergency Ex Parte Restraining Order
To protect yourself legally, your family lawyer can file an urgent motion for a restraining order at the Superior Court of Justice or the Ontario Court of Justice. Because of the severe nature of sexual violence, this is often done “ex parte”—meaning the judge hears your case without your abusive spouse knowing or being present. You must submit a sworn affidavit detailing the marital sexual assault and explaining why you have reasonable grounds to fear for your safety.
Step 4: Seek Exclusive Possession of the Matrimonial Home
If you are legally married in Ontario, both spouses have an equal right to live in the matrimonial home. However, under the Family Law Act, a judge can grant an order for “exclusive possession.” This means the court legally forces your abusive ex-partner to move out of the house and forbids them from returning, regardless of whose name is on the mortgage or lease. This provides a safe, stable environment for you and your children while the divorce proceeds.
Step 5: Coordinate Criminal and Family Proceedings
If the police lay criminal charges against your spouse, they will likely be released with strict bail conditions prohibiting them from contacting you. You must inform your family lawyer about these criminal conditions. While the criminal court punishes the behaviour, the family court will handle your divorce, property division, and child-related issues. A history of sexual violence severely impacts the court’s decisions regarding decision-making responsibility (formerly custody) and parenting time.
How Much Does it Cost in Ontario?
Seeking protection from domestic violence should not bankrupt you. The Ontario government and the courts have mechanisms to reduce financial barriers.
- Court Filing Fees: There is currently a $0 CAD filing fee to apply for a restraining order in an Ontario family court. Protection is free.
- Lawyer Fees: Retaining a private family lawyer in Ontario generally costs between $300 and $600 CAD per hour. Drafting emergency ex parte motions can cost $3,000 to $7,000 CAD.
- Legal Aid Ontario: If you are a survivor of domestic violence, you may qualify for a free two-hour emergency consultation or a full Legal Aid certificate to cover your legal fees, depending on your income in 2026.
How Long Does the Process Take?
In cases of severe family violence, the system moves quickly. An urgent, ex parte restraining order can often be granted within 24 to 48 hours of filing the application. An order for exclusive possession of the home may take a few weeks if the other side requests a hearing. However, resolving the entire divorce, including spousal support and property division, generally takes 12 to 24 months.
Frequently Asked Questions (FAQ)
Do I have to press criminal charges to get a restraining order?
No. The family court operates separately from the criminal justice system. You can obtain a family court restraining order based on your sworn affidavit and reasonable fear, even if the police decide not to lay criminal charges.
Will the abusive spouse get parenting time with our children?
The court’s primary focus is the best interests of the children. A proven history of sexual violence and coercive control often leads a judge to order highly supervised parenting time, or in extreme cases, to suspend parenting time entirely to ensure safety.
Is there a time limit to report marital sexual assault?
In Canada, there is no statute of limitations for reporting a sexual assault to the police. You can report historical abuse that occurred years or even decades ago during your marriage.
Can I get spousal support if I leave because of abuse?
Yes. Spousal support in Ontario is based on financial need, the length of the marriage, and income disparity, not on fault. Leaving an abusive marriage does not negatively impact your legal entitlement to receive spousal support.
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