Family Law...Intersection of Family and Criminal Law

Bernie Thibault – January 2017

Very recently, my colleague authored a blog providing tips for minimizing legal fees.  This was a very timely piece given the time of year.  If you haven’t read it, check out Ashley Donald’s blog entitled “Family Law … Tips for Keeping Legal Fees Down.”  I though it only fitting to continue the discussion but with respect to the intersection of family and criminal law.

Many of my clients facing criminal charges are also mutual family law clients at my firm.  These clients are usually charged with committing offences against their former spouse.  The requirement for a criminal lawyer can add a whole lot more financial stress when they have already invested significant resources into their family law file.  If you’re looking to keep your legal fees down, and you will, you need to know the following:

When you are charged with an offence, you will be provided with a document called an “Undertaking” or “Recognizance”.  The difference between the two is not relevant for today’s purposes.  What you need to understand is that this document is an order of the court which is meant to ensure your good behaviour, and promote protection of the complainant and witnesses to the criminal charge.  The order will likely contain provisions restricting your contact with your children and/or spouse.

In my experience, the order will usually not be sufficiently drafted to permit contact for the purpose of parenting or dealing with legal issues surrounding the separation of you and your spouse.  In most cases, the order provides for a blanket ‘no contact’ clause, meaning you cannot communicate with your children and/or ex-spouse directly or indirectly; this can cause a significant inconvenience requiring a court application to vary the order.

Variation applications can pose a significant financial burden.  Preparation of the application takes time.  The Crown may not have time or resources to work with Defence counsel to vary the order.  This may require multiple court appearances.  In some instances the Crown may simply opt not to deal with the application at all.  In Provincial Court, the Crown is not obliged and you will be required to file another application in Supreme Court.  The retainer you paid your criminal lawyer to defend you can quickly disappear.

If you are arrested and subsequently released by police with charges, make sure the arresting officer knows if you need to make contact with your former spouse or children.  The officer will, in most cases, try to draft the order in a manner to permit communication for your needs while still meeting the requirements of ensuring good behaviour, as well as protection of the complainant.  If you’ve recently separated and need to resolve legal issues in the separation, you’ll want to request contact with your ex-spouse through a lawyer at the very least.  If you have children, you should request that you be permitted to contact your ex-spouse for the purpose of parenting the children.  Depending on your circumstances and the charges you face, you could end up with an order that does not need to be varied, thus allowing your Defence counsel to focus on using your hard earned money to defend you, rather than making applications to change your order.

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