If charged with domestic assault, you are more likely to contact your criminal lawyer first. However, it is equally important to contact a family lawyer. It is not uncommon for a party to utilise an allegation of domestic assault to gain an unfair advantage in family court.
While you may be in shock about the allegations and deny that any domestic assault took place, you cannot wait for the matter to be disposed of in criminal court before contacting a family lawyer.
Your spouse will be advised and is most likely to proceed in family court by way of an emergency motion seeking various temporary orders which may include a no-contact order, exclusive possession of the family home, no access or supervised access to the children and custody.
The first steps taken are crucial as a status quo may be inadvertently acquired and this might determine the long term rights and obligations of family members.
You want to ensure that your rights are protected and you do not end up with a poor status quo which may long outlast the disposition of the charges.
- Retain a criminal lawyer and family lawyer immediately, they will work together to ensure that your interests regarding your children and your property are protected especially you are hoping to reconcile;
- Ensure that he the lawyers arrange a meeting immediately so that they can discuss the various options available to you and determine the best course of action; This will include discussing the impact of your bail conditions on your family circumstances especially if it you believe that the allegations are false and that the victim is simply using the allegations as a ploy to obtain exclusive possession of your home or to obtain an unfair advantage in the family court;
- If you have been served with an Application in the family court, you must respond immediately;
- If a temporary order has been obtained against you, you may want to consider commencing a motion immediately, especially if your bail conditions do not make any provisions for access to your children;
- You may also want 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;
- It is important for you to realise that criminal and family courts do not coordinate their schedule so make sure that both your lawyers are aware of your court dates.
- You must take great care to 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 in support of a claim for emergency motions.
- It is not impossible for a victim to request and produce to the criminal court statement you have made in the family law proceedings to show inconsistencies in an attempt to discredit you.
- If you are under bail conditions, the family lawyer’s goal will be to try and minimise the impact of the criminal proceedings in the context of the family matter.
- Any conditions imposed by criminal court also must 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 the no-contact order is imposed by the family court, it is equally important to comply with the order as the victim may report the breach to the police resulting in further charges.
While your criminal case is ongoing Judges in family court will usually err on the side of caution when granting any temporary orders or reliefs. Their orders granted will be based upon a number of factors which include but are not limited to the following:
- Interim Restraining Order
s.46.1 of the Family Law Ac, R.S.O. 1990:
On application, a court may make an interim or final order restraining the applicant’s spouse or former spouse from molesting, annoying or harassing the applicant or children in the applicant’s lawful custody, or from communicating with the applicant or children, except as the order provides, and may require the applicant’s spouse or former spouse to enter into the recognizance that the court consider appropriate.
s.35 Children’s Law Reform Act, R.S.O. 1990) “Smith v. Smith 2005”
35.1 On application, a court may make an interim or final order restraining a person from molesting, annoying or harassing the applicant or children in the applicant’s lawful custody and may require the person to enter into the recognizance or post the bond that the court considers appropriate.
2. Interim Exclusive possession
Section 24(3)(f) of the Family Law Act specifically provides that the court shall consider any violence committed by a spouse against the other spouse or against the children, and the best interest of the children affected:
24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
- Provide for delivering up, safekeeping and preservation of the matrimonial home and its contents;
(2) The court may, on motion, make a temporary or interim order under clauses (1)(a), (b), (c), (d), or (e).
(3) In determining whether to make an order for exclusive possession, the court shall consider,
- the best interest of the children affected,
(f) any violence committed by a spouse against the other spouse or the children.
3. Interim Custody and Access
Children’s Law Reform Act, R.S.O. 1990, Chapter F-3”
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interest of the child, in accordance with subsections (2), (3) and (4).
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c.1, s.3 (1).
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.