Criminal undertakings and/or bail release conditions that prohibit communication between domestic partners

Breaches of no contact clauses, the meaning of in direct contact, and how to get a variation allowing the spouse to move back home and resume the relationship.

When the police are called during a spousal argument or fight, the caller often wants their partner to leave for the night. They later realize, however, that their spouse is going to be criminally charged and forced by law to accept release conditions requiring them to stay out of the house and not communicate with them until the case resolves (which could take months or even years).

Undertakings and bail releases

With other types of charges, the police will often issue a Form 9 “appearance notice” document, which means the accused is charged and required to attend court (and sometimes also for fingerprints). In domestic cases there is a provincial mandate to keep both parties apart when charges are laid. As such, most accused will have to agree to the terms of a Form 10 Undertaking at the police station in order to be released from custody.

A Form 10 Undertaking will normally have no contact provisions (both direct and in direct), no weapons provisions, and require the accused to not live with the complainant or be anywhere they are known to be at, attend school, or are employed. For couples that are married, or that want to stay together, the Undertaking release conditions can be extremely difficult to comply with. This is particularly true in cases where there are children involved and the accused as no local family members or friends they can stay with while their case is before the courts.

In more serious cases, or cases where the accused or both parties have a history of 911 calls, charges, or other incidents, the accused will likely be held for a bail hearing before a justice of the peace and then subsequently released on a Form 11 Release Order with a court date and similar conditions not to contact their spouse as the Undertaking would have had. In cases that require a bail hearing, often a third party will be required to act as a surety to supervise the release. In the most serious cases, the accused will not be released on bail and have to await the disposition of their case in jail.

Does the accused have to agree to the no contact conditions of the Undertaking (Form 10) at the police station?

The accused does not have to agree to sign the Undertaking at the police station. They also have the option of refusing the Undertaking and having the case proceed to a formal bail hearing before a justice of the peace or await the disposition of their case in a provincial jail. No contact clauses are standard in Ontario for domestic cases (no matter how minor). Technically you have an option, but for most people with families, lives, jobs, etc. the options are not viable and practically speaking they have no choice other than to accept the release conditions.

Is no direct or in direct contact the only condition the accused must abide by?

In 99% of domestic violence cases the Undertaking or Release Order will also forbid the accused from attending the family home except on one occasion in the presence of a police officer to gather necessities. The conditions of release will relate to the history of the accused and the alleged facts of the case. If the incident involved the use of alcohol, they may be forbidden from drinking alcohol. Sometimes release conditions also contain clauses preventing the accused from going to other certain places, using a cell phone or computer, abstaining from non-prescription drugs, not possessing weapons, and having no contact with other 3rd parties.

The denial of freedoms for individuals who are simply accused of an offence (often minor) in Canada can be tremendous despite the presumption of innocence.

My spouse keeps trying to contact me despite my condition forbidding me from communicating with her/him? Can they be charged?

It must be understood that it is not the complainant/victim that is prohibited from contacting the accused, it is the opposite. Theoretically, the victim could contact the accused, but the accused would be committing a criminal offence (failure to comply under Criminal Code Section 145) by responding. Charges for failing to comply with an Undertaking or Release Order are among the most common criminal charges in Ontario, Canada.

What does direct or in direct contact mean?

Most undertakings or bail conditions forbid the accused from making direct or in direct contact with the accused. No direct contact means the accused is not allowed to message or talk to the victim/complainant (in person, over the phone, texting, messaging via the internet such as Twitter, Facebook, etc.).

In direct contact refers to a third party relaying or passing messages to the victim from the accused. This could include a parent, friend, relative, co-worker, or anyone known to both parties. The purpose of the undertaking is to prevent the accused from contacting the “victim” in any way and any contradiction of this is a breach that would result in new/additional charges if the police became aware of it. A new breach charge/case could also quite possibly be held at a completely different courthouse than the original charge depending on where it takes place in Ontario.

Do people accused in domestic cases often breach the no contact clauses in undertakings and bail releases?

Domestic no contact clauses are often breached because of the emotions involved and the associated logistical difficulties that arise from the accused and the complainant being forced to suddenly stop communicating. In many cases, they share a house, finances, have children, and often have no intention of ending the relationship.

Just as breaches are common, so are charges for breach of undertaking/bail if discovered by the police. The police become aware of the breach often because of a subsequent fight or 911 call, a friend of family member reports it (because they don’t approve of the relationship), or the accused incriminates himself by admitting the breach to the police. Also, sometimes the police will discover breaches during traffic stops because running the licence plate of a driver who has a case before the courts will often show in the police computer system that they are released on conditions of an undertaking or bail.

Breaching an undertaking or bail will not only mean a new and separate set of criminal charges, it also means the accused will likely have to spend a night (or two) in jail before being rereleased. In more serious cases, the accused may not win a subsequent release and have to await their trial date or sentencing in jail. If the breach is said to happen in a different jurisdiction the breach case will be at a different courthouse than the original charge. If you live in Mississauga and have a case at 7755 Hurontario Street and you are charged with illegally contacting your spouse in Toronto, you will have a separate breach case in one of the Toronto courts.

How do I get my bail or undertaking varied right away so I can go back home and resume my relationship?

When charges are first laid and the accused (and often the complainant) realize the tremendous inconvenience of having to remain apart and have no contact with their partner, they often want these conditions removed right away. The problem is that the system does not work like this. Many people in this process find themselves on a “wild goose chase” of futile attempts to change the conditions before the court date. This is because they will inevitably be sent to talk to various people who will be absolutely useless in helping them.

The first place the victim (or accused) will go to is the police. The police will often claim they can’t change anything and direct them to talk to the Crown Attorney. What they fail to mention is that the Crown Attorney will not have the file until about 30 days after the charges are laid. So the victim or accused will take a trip to the Crown Attorney's office to talk to often unpleasant and unhelpful secretaries. If they happen to talk to a Crown, they will discover that no Crown would vary a release condition without looking at the file first (which of course they don’t have yet). In the vast majority of cases, you will have to wait until at least the first court appearance date to have a release condition varied (often a few weeks later in a best case scenario).

For those who are in the process of wasting their time talking to probation officers, (often unhelpful and unfriendly) victims services workers, Crown Attorneys without files, and police who refuse to help, they will eventually realize their efforts are futile. Technically, it may be possible for the police to vary release conditions though practically they almost never do so. A justice of the peace can do it but normally only with the consent of the Crown Attorney, which will virtually never happen without the file.

There is simply no quick fix in 99% of cases to getting the release conditions varied, but don’t take our word for it, go out and try it yourself because it is not technically impossible. We are sometimes able to work out a deal to get the accused back into their house and able to communicate with their partner or spouse on the first court appearance or within 4 weeks of it. Sometimes the defense must strategically adjourn the case in order to obtain exculpatory evidence or gain a greater chance of speaking to a Crown Attorney who is more likely to agree to a favorable deal for their client.

While many will agree to vary the conditions, it could include a lengthy PARS program and a guilty plea (often with probation). Waiting a little longer could allow the accused to avoid pleading guilty and have their charges withdrawn. A good lawyer knows who to talk to and presents their client with the options. It ought to be the informed decision of the client how fast the case proceeds. It is always in our best interest to have our cases resolved as soon as possible, but only if it is favorable to our clients’ best interests.

I need the Crown to consent to a variation so I can communicate with my spouse again. What factors will help my case?

The Crown will only consent to such variations in cases that are relatively minor, with no extensive history of prior 911 calls, charges, criminal records, and where they are satisfied that the victim is comfortable and wants to reconnect and have communication with the accused again. A variation deal is not possible in all cases. Some cases/allegations are simply too serious particularly when they involve injuries and the use of weapons.

We can give you a fairly realistic projection of the probability of regaining contact over the phone. In some types of cases a deal of this nature is likely, some are “on the fence”, and others will clearly be impossible. We don’t play games with those who call us. We ask very specific questions and look for very specific answers in order to immediately determine the seriousness of the case, such as:

1. What exactly happened or is said to have happened
2. Whether a video recorded (KGB) statement was taken by the police from the “victim”
3. Whether there is a history of prior 911 or police calls
4. Whether the accused has been charged before or had contact with the police before
5. The location the case is being heard at (Toronto, Peel, York, Halton, Durham, etc.) – each courthouse handles these cases differently
6. Whether children were present at the time of the alleged offence
7. Whether drugs or alcohol was involved in the incident
8. Whether the accused or victim takes any medication such as cipralex, oxycontin, wellbutrin, etc.
9. The employment status and educational background of the accused
10. The age of the parties involved
11. The immigration status of the accused
12. The history leading up to the alleged event

While we give upfront, extremely valuable information over the phone, we require and appreciate straightforward answers from those who call us. We need this information to tell you what you need to know such as:

1. Whether it is possible to have your undertaking or bail varied to allow you to contact your spouse again before your case resolves
2. Whether it is realistically possible to get the Crown Attorney to agree to withdraw your charges, or agree to an absolute or conditional discharge so you don’t get a criminal record
3. What you will likely need to do to make such a deal happen
4. How much time will be required for your case and what our fees will be to represent you

I am a domestic violence victim who wants the charges dropped and to have contact again. How can I help?

If you are the complainant/alleged victim of a domestic violence incident and are looking to help your partner or spouse have their Undertaking or Release Order varied to allow them to come home and have contact with you again and get their charges dropped or reduced, please see our page on domestic affidavit services.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

---