How Your Criminal Charges Can Affect Your Family Law Proceeding Under The Amended Divorce Act
By: Sarah Durcikova, Summer Student
Several important changes to the Divorce Act came into effect on March 1, 2021 [1]. For clients facing criminal charges, the most relevant changes are: the mandatory consideration of family violence as well as any criminal court actions or orders that are relevant to the well-being of the child. These new additions are considered under the best interest of the child test, which is the only mechanism used by the courts to decide the allocation of parenting time with a child of the marriage. What does that all mean? In a nutshell, it means that if you have any outstanding criminal charges, they may be factored into how the courts will decide on custody and access with your child, now called decision-making and parenting time. A court’s guiding principle is that a child should have as much time with each parent as is consistent with the child’s best interest.
Family violence is also a new and highly anticipated addition to the amended Divorce Act. Under section 16(4), family violence is defined as follows:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property
It is important to note that family violence under the Divorce Act carries a different burden of proof than in criminal law, and you do not necessarily need to be facing criminal charges to have family violence considered by the courts in your divorce proceeding. Under family law, the burden of proof is on a balance of probabilities rather than the criminal standard of beyond a reasonable doubt, which means a lower threshold of guilt is needed in family law. However, if you are facing criminal charges that involve violence with an intimate partner, these will likely be considered in your divorce proceeding and your allocation of parenting time with your children.
Finally, the Divorce Act made several changes to the rules surrounding relocation and change of residence. While the family law rules surrounding moving your child to another city, province, or country are now quite extensive, it is important to note that you may be charged criminally with kidnapping if you do not follow the rules and requirements for moving with your child.
Additionally, if you are charged with a criminal offence, your bail release terms may include a no-contact order, which means that you would not be allowed to speak to your spouse or children as you normally would. In this case, you would need to apply for a bail variation.
Family law proceedings often intersect with criminal matters in unexpected and often detrimental ways. It is important to be mindful that the amended Divorce Act has made this overlap even more evident. The above is not legal advice and you should seek the expertise of a family lawyer and a criminal lawyer to discuss your particular situation if you are facing criminal charges that may affect your divorce proceeding.
If you are charged criminally, please contact us at 416-304-1414.