If you are charged with domestic assault and the complainant is your spouse or common law partner, then family law issues may come into play. There is also a concern that the complainant may rely on the allegation(s) of domestic assault to gain an unfair advantage in family court. Even if you believe the allegation(s) are untrue, it is still important that you properly protect yourself against issues in family court. To do this, it is important you consult a family lawyer.
What could happen in family court?
Your spouse or common law partner, depending on their interest in either continuing the relationship or ending it, may proceed in family court by way of an emergency motion seeking various temporary orders. These can include a no-contact order, exclusive possession of the family home, no access or supervised access to the children, if any, and custody of the children.
The first steps taken are critical, as a status quo may be inadvertently acquired, which could determine your long term rights and obligations. Such responsibilities will outlast the disposition of your criminal charges.
Quick Guide to Practical Steps
- Retain a criminal lawyer and family lawyer immediately. Both lawyers will work together to ensure that your interests respecting your children and your property are protected.
- Follow up to ensure that the lawyers arrange a meeting to facilitate discussions of the various options available to you and to determine the best course of action. For instance, topics that may be covered will include bail conditions and the strength of the complainant’s case and his or her chances of getting exclusive possession of the home. If you are under bail conditions, the family lawyer’s goal will be to try and minimize the impact of the criminal proceedings in the context of the family matter.
- If you have been served with an application in the family court, you must respond immediately and inform your criminal lawyer of this.
- If a temporary order has been obtained against you, you may want to consider commencing a motion immediately. This is especially the case if your bail conditions do not make any provisions for access to your children, if any.
- You may want to get an order in the family court that allows you to retrieve your personal property from the family home or an order that the family property in the control of your ex partner is preserved.
- Ensure that both your criminal and family law lawyers are aware of your court dates.
- Ensure that the statements you make to the police are consistent with those that you make in the family law proceedings, especially if you have to swear an affidavit. The complainant may request and produce to the criminal court statements you have made in the family law proceedings, or vice versa, to show inconsistencies in an attempt to discredit you. Credibility is an important part of your case in both courts and can have a direct impact on the outcome of your matters.
- Be aware that any conditions imposed by criminal court must also be followed in family court. If there is a no-contact order imposed as a term of your release in criminal court, you must not attempt to contact your ex-spouse under any circumstances. If there is an urgent need to do so, consult your lawyers to learn about your options. Breaching a bail condition is a criminal offence and you will be charged with additional charges. This will harm your case.
- If the no-contact order is imposed by the family court, it is equally important to comply with the order as the complainant may report the breach to the police resulting in further charges.
While your criminal case is on-going, judges in family court will usually err on the side of caution when granting any temporary orders or reliefs. Their orders will be based upon the various factors discussed above.
The take away from this blog is that if the complainant in your case is a spouse or common law partner, then you are required to take additional steps to protect yourself. Our goal is to help you turn your mind to some of the potential issues that may arise if you fail to do so.