Criminal law and family law are two distinct areas of practice, each with their own legislation and body of common law precedent. However, many family law cases also have aspects of criminal charges layered within, such as where abuse is present. The effect that a criminal charge has on a family law matter can be significant depending on the circumstances. In this article I will explore this interplay between criminal law and family law. I will outline the various ways that a criminal charge against a party could potentially impact the various aspects of a family law matter.
Effect on Divorce
The effect a criminal charge has largely depends on the nature of the offence. If the offence is non-violent and unrelated to the family, it is unlikely to play a major role in family court decisions. The 2021 amendments to the Divorce Act introduced a mandatory consideration of family violence in divorce proceedings. Under section 16(4), family violence is defined broadly to include:
- Physical abuse (excluding reasonable force used in protection);
- Sexual abuse;
- Threats of harm;
- Harassment, including stalking;
- Psychological and financial abuse;
- Withholding necessities of life;
- Threats or harm to animals or property.
Unlike in criminal law, where guilt must be proven beyond a reasonable doubt, family courts use the balance of probabilities standard. This lower burden of proof means that even if there hasn’t been a conviction, allegations of family violence can still be considered in family court decisions.
If a parent is facing criminal charges for violence against their spouse or children, this will likely be a key factor in determining parenting time and decision-making responsibility. The guiding principle remains the best interests of the child. Courts prioritize ensuring a safe environment for them. Violent crimes, sexual offences, and drug- or alcohol-related convictions may negatively impact custody decisions. The court may conclude that the parent is unfit to make decisions on behalf of the child or even to have unsupervised parenting time.
Effect on Ongoing Parenting Arrangement
Pending criminal charges can make existing parenting arrangements difficult or impossible to follow. If one spouse obtains a restraining order or an emergency protection order due to allegations of family violence, the accused parent may be subject to conditions that prevent contact with their former spouse and children. These conditions can include:
- No-contact orders, preventing direct communication with the child or co-parent;
- No-go conditions, restricting presence at the other parent’s home, workplace, or the child’s school;
- Bail conditions that override existing parenting arrangements.
Such restrictions may necessitate supervised visitation or third-party intervention for exchanges. If a parent is denied access due to a criminal charge, they may need to apply for a variation of the order to allow for continued parenting time.
Relocation and Criminal Consequences
The Divorce Act also introduced stricter rules regarding relocation. If a parent moves with their child without following legal procedures, they could face criminal charges for parental abduction. Parents with pending criminal cases should also be mindful. Bail conditions may impose travel restrictions, which could impact relocation plans.
Misuse of Criminal Allegations in Custody Disputes
Unfortunately, some parents use criminal allegations as a strategy in custody disputes. False allegations of abuse can be made to gain an advantage in family court. While courts take such claims seriously, they also scrutinize evidence to prevent manipulation of the legal system. They may award primary residency to the accused party. For example, if a Father was falsely accused of sexually abusing his child, criminal charges would follow, and he would immediately be denied access. If the charges are quickly dismissed, the Court may find that the mother had deliberately sought to alienate the father and may place the child in his care instead.
False allegations can cause lasting harm to both the accused parent and the child. The legal process can be lengthy and stressful, leading to financial and emotional hardship. Courts carefully evaluate the credibility of claims, relying on police reports, medical records, witness testimony, and expert evaluations when determining their validity. If a parent is found to have knowingly made false allegations, they may face further legal consequences.
While family courts aim to protect children from harm, they also recognize the potential misuse of criminal accusations. If you believe you are facing baseless allegations, seeking legal counsel is essential to protect your parental rights.
Conclusion
The overlap between family law and criminal law has become more pronounced, particularly with the recent changes to the Divorce Act. If you are facing criminal allegations that may impact your parenting rights, it is crucial to seek legal advice from both a family lawyer and a criminal lawyer. This will help navigate these complexities effectively.
By Caidan Ubell