A Bad Relationship Is Not a Sexual Assault

We see the same pattern with alarming regularity: a relationship ends — often badly, often involving infidelity, a custody dispute, or a contested separation — and weeks or months later, one party goes to the police and alleges that sexual assaults occurred during the relationship. The allegations are historical. They were never mentioned during the relationship, never disclosed to friends or family at the time, and never reported to police until the relationship fell apart and a parallel legal proceeding — typically in family court — was underway.

These cases are not rare. They are now a significant portion of the sexual assault cases we defend. And they share a set of recognizable features that experienced defence lawyers know how to identify, investigate, and dismantle.

If you are facing sexual assault allegations that emerged during or after a relationship breakdown, contact us immediately. The earlier we are involved, the more effectively we can build the record that tells the real story.

The Pattern: Criminal Allegations and Parallel Proceedings

The typical scenario unfolds as follows:

1. The relationship ends. One partner discovers infidelity, or the parties separate acrimoniously, or a custody dispute begins in family court.
2. Family court proceedings begin. One party seeks an advantage — primary custody, exclusive possession of the home, a restraining order, an upper hand in property negotiations.
3. Criminal allegations surface. The complainant goes to police and alleges sexual assaults that occurred during the relationship — sometimes spanning months or years. The timing coincides with a critical juncture in the family proceedings.
4. The criminal charges reshape the family case. The accused is now subject to bail conditions that may include no contact with the complainant and removal from the shared home. In family court, the existence of criminal charges is used to argue that the accused is a danger and should have restricted or supervised access to children.

This is not speculation. It is a pattern we see repeatedly, and it is well recognized by criminal defence counsel and family lawyers across Ontario. The criminal justice system becomes a weapon in the family law dispute — and the accused is left defending two proceedings simultaneously, with the outcome of each affecting the other.

Why Parallel Proceedings Create False Allegations

The incentives are straightforward. A complainant in a family law dispute who has criminal charges pending against the other parent holds a significant strategic advantage:

• Custody: Criminal charges for sexual assault, combined with no-contact bail conditions, effectively determine interim custody arrangements. The accused parent is removed from the home and may be prohibited from seeing the children except under supervised conditions.
• Property: The complainant retains exclusive possession of the family home while the accused is bound by bail conditions not to attend.
• Negotiating leverage: The existence of criminal charges creates enormous pressure on the accused to make concessions in family court — on support, on property division, on custody — in the hope that a favourable family resolution will influence the criminal outcome.
• Credibility framing: A complainant who has gone to the police and laid charges presents as someone who must be telling the truth — after all, why would they subject themselves to the criminal process if it didn’t happen? This framing ignores the substantial strategic benefit they derive from the charges.

None of this means that every allegation arising during a separation is false. Relationship breakdowns can be the trigger that gives a genuine complainant the courage to come forward. But it does mean that the timing, the motive, and the context of the complaint must be scrutinized with exceptional care — and in our experience, a significant number of these complaints do not survive that scrutiny.

Revisionist History: Rewriting the Relationship

The hallmark of these cases is revisionist history — the complainant rewrites the sexual dynamics of the relationship after the fact, recharacterizing encounters that were consensual at the time as assaults.

This rewriting takes several common forms:

Reclassifying Routine Sexual Activity

The complainant describes ordinary sexual activity that occurred during the relationship — activity that was mutual, repeated, and never objected to at the time — and recasts it as coerced or non-consensual. Sex that happened regularly over the course of a multi-year relationship, without any contemporaneous complaint, is presented to police as a pattern of assault.

Weaponizing Relationship Dynamics

Every relationship has power dynamics, disagreements, and moments of tension. In these cases, the complainant reframes normal relationship friction — arguments about money, disagreements about parenting, frustration about household responsibilities — as a coercive environment in which they were unable to freely consent to sexual activity. The argument is that the relationship itself was so controlling that consent was impossible, even though the complainant never expressed this view during the relationship.

Retroactive Withdrawal of Consent

The complainant acknowledges that they participated in sexual activity but claims they did not truly want to, that they felt pressured, or that they “went along with it” to avoid conflict. This is not, in law, the absence of consent. Consent under section 273.1 of the Criminal Code is the voluntary agreement to engage in the sexual activity in question. A person who chooses to participate in sexual activity — even reluctantly, even unenthusiastically — has consented, provided there was no force, threat, coercion, fraud, or abuse of authority.

This is a critical legal distinction that the post-Ghomeshi, post-#MeToo cultural conversation has blurred. As we discuss in our companion article, Bad Sex Is Not a Sexual Assault, the cultural redefinition of consent has outpaced the legal definition — and the gap between them is where wrongful charges are laid.

The Digital Record: The Story the Complainant Cannot Rewrite

In relationship cases, the most powerful defence tool is the contemporaneous digital record — the texts, emails, photos, and social media interactions that existed during the relationship and that the complainant cannot retroactively alter.

This evidence routinely reveals:

• Affectionate, sexual, or flirtatious messages exchanged between the parties during the period when the alleged assaults were supposedly occurring
• The complainant initiating sexual activity — through explicit messages, photos, or invitations
• No contemporaneous disclosure — the complainant never mentioned assault, discomfort, or coercion to anyone during the relationship, despite having close friends, family members, or therapists they confided in about other matters
• Continued voluntary participation in the relationship, including voluntary sexual activity, after the alleged assaults
• Timing of the complaint — the first mention of sexual assault occurs only after the relationship ends and family proceedings begin

We work closely with our clients to identify, collect, and preserve every piece of digital evidence that speaks to the true nature of the relationship. Read our guide on collecting digital evidence — this step is critical, and it must be done early, before messages are deleted or accounts are deactivated.

How We Defend Relationship-Based Sexual Assault Cases

1. Mapping the Parallel Proceedings

We obtain a complete picture of the family law proceedings — the timing, the claims, the orders sought — and map them against the timeline of the criminal complaint. The correlation between family court events and criminal allegations is often striking and is powerful material for cross-examination.

2. Full Disclosure Review

We obtain and scrutinize the complete Crown disclosure package. In relationship cases, the initial police statement is often vague and conclusory — the complainant describes a “pattern” of behaviour without specific dates, times, or details. Pinning down the particulars is essential, because vague allegations are difficult to disprove but specific ones can be tested against the record.

3. Building the Trial Record

The core of our defence in these cases is building a comprehensive trial record that tells the real story of the relationship — not the revised version the complainant has presented to police. This includes:

• The complete text message and email history between the parties
• Social media interactions, photos, and posts during the relationship
• Communications with third parties that reflect both parties’ states of mind
• Records of the family court proceedings, including sworn affidavits and court orders
• Any prior statements the complainant made — to family lawyers, to mediators, to therapists, to friends — about the relationship

When this record is assembled and presented at trial, it frequently contradicts the complainant’s account in material and irreconcilable ways.

4. The Consent Defence

Where the evidence demonstrates that sexual activity was consensual — as it often does in these cases — we present a direct consent defence. The contemporaneous evidence establishes that the complainant voluntarily agreed to the sexual activity at the time, regardless of how they have recharacterized it since.

5. Honest but Mistaken Belief in Consent

Where the issue is ambiguity rather than clear consent, we assess whether the defence of honest but mistaken belief in consent under section 273.2 of the Criminal Code is available. This defence requires that the accused honestly believed the complainant was consenting and that they took reasonable steps to ascertain consent. In long-term relationships where sexual activity followed established patterns, this defence can be particularly compelling.

6. Motive and Credibility

The complainant’s motive is central to these cases. We present evidence of the family law dispute, the custody battle, the financial stakes, and the timing of the complaint. This is not about attacking the complainant — it is about ensuring the trier of fact has the full picture when assessing credibility.

The W.(D.) framework requires the judge to consider whether the accused’s evidence raises a reasonable doubt before convicting on the strength of the complainant’s testimony alone. In relationship cases, where the contemporaneous evidence so frequently contradicts the complaint, the path to reasonable doubt is well-established.

Coordinating Criminal and Family Defence

If you are facing both criminal charges and family court proceedings, it is essential that your criminal defence lawyer and your family lawyer work together. Decisions in one proceeding directly affect the other:

• Testimony given in family court can be used in the criminal trial
• Bail conditions affect custody and access arrangements
• A criminal conviction for sexual assault will devastate your position in family court
• Conversely, a withdrawal or acquittal on the criminal charges significantly strengthens your family law position

We coordinate with family counsel to ensure that the defence strategy is consistent across both proceedings and that nothing done in one court undermines your position in the other. For more on how domestic charges interact with family court, see our detailed guide.

The Consequences of Inaction

Sexual assault charges carry devastating consequences — imprisonment, mandatory registration under SOIRA, and permanent reputational damage. In the context of a family dispute, a conviction does not just affect your liberty. It determines whether you will have a meaningful relationship with your children.

These cases require immediate, aggressive defence. The earlier we are involved, the more evidence we can preserve, the more thoroughly we can map the parallel proceedings, and the more effectively we can challenge the Crown’s case.

The Bottom Line

A bad relationship is not a sexual assault. A bitter separation is not evidence of a crime. The end of a marriage — even one marked by conflict, infidelity, or resentment — does not retroactively transform consensual sexual activity into criminal conduct.

If you are facing sexual assault charges that coincide with a separation, divorce, or custody dispute, you need a defence team that understands both the criminal and family law dimensions of your case and that will build the record necessary to tell the real story.

Facing sexual assault allegations during a separation or custody dispute? Contact Mor Fisher LLP immediately. Call 705-721-6642.