Sometimes, we see situations where our client is involved in a criminal court case as well as their family law case. While this can certainly complicate matters, the criminal charges may or may not impact your separation and divorce, depending on what the charges are and whether you are convicted. The primary consideration is whether the nature of the crime affects your ability to be a good parent to your children.
The Differences Between Family Court and Criminal Court
Family law and criminal law are handled separately. In family law cases, the goal is to resolve issues relating to separation and divorce, including spousal support, child support, and asset division. Family court does not determine guilt or innocence of any criminal activity. Conversely, in a criminal law case, the goal is to determine whether a person charged with a crime is actually guilty, and not to decide on anything relating to family law.
Because these two legal processes are handled separately, it is extremely important to inform the judge in each case of any existing court orders in order to avoid any conflicts. For example, before a family court judge decides on issues such as access to your children, they will need to know if there is a restraining order in place as the result of a criminal offence.
Factors That Affect Custody Decisions
When deciding on child custody arrangements during a divorce proceeding, a judge will consider the following aspects:
- Each parent’s relationship to the children
- The ability to parent the children effectively
- Each parent’s health status (both physical and mental)
- Work schedules of each parent
- Available support systems
- A background check, which includes criminal records
When Do Criminal Charges Affect Your Divorce?
Simply having a criminal record will not necessarily affect your divorce proceedings or custody arrangements, depending on the crime. If the offence is non-violent and does not involve your children or spouse, then chances are good that it won’t have a major influence on the judge’s decision.
On the other hand, anything involving family violence will certainly have an effect on any family court rulings, but exactly what the effect may be can vary substantially depending on the case. For example, you may think that a history of spousal abuse will mean that the abusive parent will not get custody of the children, but this isn’t necessarily true. The spouses’ relationship to each other may be completely different from their relationships with their children, and it’s possible that an abusive spouse may still be a good parent.
However, it does mean that accessing the children may be more difficult, especially if a restraining order or peace bond is in place. For example, if the abusive spouse is not permitted to come within 500 meters of their ex, then showing up at their house to pick up the children isn’t an option. Violation of a restraining order is a crime, no matter what the reason for it is. This is one of the reasons why it’s vitally important to make sure your family lawyer knows about any orders that came from a criminal court; fortunately, restraining orders can be processed through family court, meaning that communicating that fact to the lawyer handling your divorce will be a bit easier.
Can a Criminal Record Be Cleared?
In certain circumstances, it may be possible to have a criminal record suspended, meaning that previous convictions will be removed from the RCMP database. This option may be available after any sentences have been served and the person convicted of the crime has demonstrated that they are, and intend to remain, a law-abiding citizen, provided that the crime did not involve children and that all other eligibility criteria are met.
Contact Galbraith Family Law for Help With Divorce Proceedings
Whether you have a criminal record or not, the lawyers at Galbraith Family Law have extensive experience with all kinds of separation, divorce, and child custody situations. We can advise you on how your criminal record may affect your family law case and work to find the best outcome for you and your spouse and children. Send a message through our website or give us a call for assistance. In Newmarket, our phone number is (289) 802-2433; in Barrie, call (705) 302-1102.