Family law issues involve disputes related to divorce, custody, child support and property division. Criminal laws govern crimes against people or society. Most disagreements over visitation, holidays, etc., are family law issues. However, where there is a threat of violence (assault) or repeated unwanted communications (harassment), the matter can become a criminal issue. This difference in focus is very important, especially since children will likely continue to need both parents to remain in contact.
Table of contents
- Where does an ordinary argument become a crime?
- What occurs after someone makes a call to the police?
- The obstacle of release conditions
- The problem with no-contact conditions
- Does an arrest automatically stop parental rights?
- An acquittal may not resolve all issues concerning parental responsibilities
- Think before sending that text
- What do children need to know?
- Emergency situations
Where does an ordinary argument become a crime?
Arguments between former partners will inevitably arise regarding things like holiday time, sports schedules, etc. Angry or sharp speech by itself does not represent a criminal offense. However, depending on what occurred, the frequency of the behavior, and what led up to the incident(s), investigators may view the event differently. For example, in Canada, using force upon another person without consent is considered assault. Making threats of serious bodily harm can also result in criminal charges. Conduct that repeatedly puts someone in reasonable fear of their personal safety can also be classified as criminal harassment.
Akash Dhillon, a criminal defence lawyer at A. Dhillon Law, handles cases involving allegations of assault, harassment and threats. “In co-parenting disputes, the context of a conversation can be just as important as the words themselves. Police may examine a series of messages, the history between the parents and whether anyone’s safety was threatened.”
What occurs after someone makes a call to the police?
Imagine this scenario: there is a disagreement while dropping off a child at school. Both parents claim the other physically interfered with them. There were witnesses present, and prior to the altercation, there had been previous exchanges via text messaging.
Police will investigate all participants, assess any evidence and decide whether there is sufficient cause to lay charges. Simply having an accusation made against you does not equate to being convicted.
If charges are filed, the case will proceed under the applicable criminal law. In Ontario, the Crown attorney decides how the case will be prosecuted. The parent who initiated the complaint will not be able to unilaterally withdraw the case once a discussion occurs or once the two parties have reconciled.
The obstacle of release conditions
The first practical hurdle often involves release conditions issued by police or by a judge. These conditions frequently include restrictions on:
Contacting the other parent
Visiting certain locations
Communicating with specific people
These constraints may severely limit daily tasks required by children (e.g., ensuring the younger child knows which parent is picking him/her up, reminding the older child of prescriptions, making adjustments when a child falls ill).
The problem with no-contact conditions
Release conditions are often the first practical obstacle. Police or a court may impose restrictions preventing an accused person from contacting the other parent, going to particular places or communicating with named individuals.
Consider how much coordination children require. Someone has to confirm who is picking up the youngest, remind the other parent about a prescription and deal with last-minute changes when a child gets sick.
Rupin Bal, a criminal defence lawyer with Rupin Bal Professional Corporation, represents clients in domestic assault matters and proceedings involving release conditions. “Parents sometimes assume that an existing parenting arrangement gives them permission to communicate as usual. If a criminal release order restricts contact, that order must be respected until the conditions are formally changed.”
A friendly message can still violate a condition if direct contact is prohibited. Consent from the other parent does not automatically make the communication permissible.
Some orders allow contact through lawyers, designated third parties or specific arrangements involving children. Others have no such exception. The wording matters. Parents should seek legal guidance about any change they need instead of testing the boundaries themselves.
Does an arrest automatically stop parental rights?
An arrest can create the impression that parental responsibilities have ceased. Although criminal courts address liability for committing crimes and family courts evaluate arrangements that serve a child’s best interests (with consideration given to family violence and safety), they operate independently of one another. Therefore, even though a criminal court may convict a defendant for an alleged crime, it may not necessarily terminate someone’s right to spend time with their child(ren).
Depending on the nature of the evidence presented and the circumstances surrounding the alleged offenses, a family court may contemplate supervised visitation, supervised exchange of children or alternative arrangements that minimize confrontation among parties. Similarly, a criminal release order can limit a party’s ability to engage in activities that would otherwise facilitate interaction between the parties.
An acquittal may not resolve all issues concerning parental responsibilities
Although an acquittal may settle the underlying issue addressed in the criminal court system, it does not automatically resolve any issues relating to parental responsibilities, as those issues are typically governed by a different set of legal standards than those used by criminal courts. Additionally, an order respecting parental responsibilities does not grant authority to disregard conditions contained within a criminal release order.
Think before sending that text
You probably think twice before hitting reply when your ex-spouse cancels plans at the last second. You probably want to express your frustration and anger when your ex-spouse contacts you for little reason other than to discuss minor matters. However, your responses could ultimately become evidence. Your text messages, emails and records from your parenting apps can be useful in establishing timelines of events and showing patterns of aggressive behavior or unwanted contact. While a single image of one sentence may tell half of the story, it does not take into account all of the preceding or subsequent events.
Maintain your digital records in their original form and avoid altering conversations or deleting potential evidence. Refrain from sending anything solely for the purpose of provoking a reaction from your partner.
What do children need to know?
While children do not have to know about bail hearings, trials or restraining orders, they will undoubtedly notice if something unusual is occurring with regard to one or both parents’ participation in scheduled activities. For example:
Do they see their normal drop-off/pick-up schedule change?
Is there now an absence of one parent during their typical hours?
Are adults acting fearful when discussing their respective living situations?
To ensure continuity with as many aspects of children’s lives as possible, maintain daily routines as far as possible. Describe changes using language suitable for children. Limit children’s involvement in any adult disputes.
Emergency situations
If there exists an imminent threat, call emergency services immediately. Victims of family violence or intimidation may contact local support organizations for assistance with protecting themselves and/or seeking counsel on their options.
