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What if I have family court and criminal court issues happening at the same time?

You may have family law and criminal law issues at the same time.

The Ontario Court of Justice has an Integrated Domestic Violence Court at 311 Jarvis Street in Toronto. The same judge hears both the family law and criminal law cases that involve partner abuse. The court tries to help families experiencing domestic violence by coordinating both cases. This means your case might be resolved faster.

But this court cannot hear certain types of family law cases. It cannot hear cases that involve divorce, property division, or child protection. So if your family case is about any of these issues, you cannot go to the Integrated Domestic Violence Court. You have to go to 2 different courts, before different judges, at different courthouses. This can be confusing.

If you have to go to 2 courts, you may get orders from both courts that say different things. For example, your family court order may say your partner has access to the children. But your criminal court order may say your partner must stay away from you and the children.

Both orders have to be followed. So if there is a conflict, you might need to get the family court or the criminal court to change their order. For example, you might need to change the criminal court order to allow for access to the children.

Talk to a lawyer

You can talk to a lawyer who can tell you how you may be able to protect your child.

If you can't afford to hire a lawyer for everything, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with only certain things, like getting a restraining order or drafting a court document.

If you can't afford to hire a lawyer at all, you might be able to find legal help in other places. You can also find emotional, safety planning, and housing help when leaving an abusive relationship.

If you have experienced family violence and need immediate legal help, you might be able to get 2 hours of free advice from a lawyer. This service is offered through some women’s shelters, community legal clinics, and Family Law Service Centres. Or you can call Legal Aid Ontario toll-free at 1-800-668-8258 to find out more.

If you have experienced sexual abuse and live in Toronto, Ottawa, or Thunder Bay, you might be able to get 4 hours of free advice from a lawyer. You have to complete a voucher request form. Or you can call the Independent Legal Advice for Sexual Assault Survivors Pilot Program at 1-855-226-3904 to find out more.

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1. Learn the differences between family court and criminal court

Parties

In criminal court, the parties are the partner who is charged with a crime and the government. The Crown Attorney is a government lawyer who presents the case in court.

In family court, the parties are usually just you and your partner. In some cases, another party might be involved. For example, the Family Responsibility Office might be a party if there is a default hearing because one partner hasn’t been making support payments.

Purpose

Criminal courts decide if a person accused of a crime is guilty. They might also order that person to follow conditions, such as they cannot contact their partner or children. But the criminal courts don't decide your issues if your relationship ends. For example, they don't decide what custody and access plans would be in the best interests of your children after you and your partner separate.

Family courts do not decide if a person is guilty of a crime. Family courts decide how to resolve issues that partners can't agree on when they separate. For example, custody and access to children, child support, spousal support, and property division. Family courts don't need to decide why the partners separated, or who ended the relationship.

When deciding children's issues like custody and access, a family court uses a legal test called the best interests of the child. In making this decision, the family court looks at behaviour that affects a person's ability to be a good parent to a child. This includes whether a parent has been violent or abusive to the child, their partner, a parent of the child, or anyone living in the home. This does not include anything done in self-defence or to protect another person.

Legal test

In criminal court, the standard of proof is beyond a reasonable doubt. This means the evidence must show that there is no reasonable explanation for what happened, other than that the accused did it. If there is any other reasonable explanation, the accused is found not guilty.

In family court, the standard of proof is a balance of probabilities. This means the judge has to decide whose story is more believable.

There can be a different result in each court because of the different standards of proof.

For example, if your partner was found not guilty of assault in criminal court, this is because there was not enough evidence for the judge to believe, beyond a reasonable doubt, that they committed the assault. But in family court, the judge might decide to give you a restraining order because they believe your story that your partner assaulted you more than they believe your partner's story.

Outcomes

In criminal court, if your partner is found guilty, they might go to jail and get a criminal record.

In family court, usually no one goes to jail. Neither person gets a criminal record.

Your family court and criminal court orders can say different things. For example, bail conditions from criminal court can conflict with access or restraining orders from family court. If this happens, you have to go to either court to change its order.

Getting help

Someone from the Victim Witness Assistance Program (VWAP) can help you in criminal court. The VWAP worker explains the criminal court process and helps you find community services and resources to help you.

The Ontario government has a Victim Services Directory that helps abuse victims find programs and services in their communities. You can also talk to an information and referral counsellor by calling the Victim Support Line at 1-888-579-2888.

A Family Court Support Worker can help you in family court. They are trained to support people who have experienced domestic violence. Their services are free of charge and are available in every family court jurisdiction in Ontario.

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2. Find out about conditions of release

The police and the court can release someone charged with a crime in different ways. Each type of release has its own name.

For example, the police might release your partner on an "undertaking with conditions". This agreement is usually made at a police station. It means your partner:

  • promised in writing to appear in court on a future date
  • got conditions they have to follow.

If the police have concerns about releasing your partner, they must take your partner to court for a bail hearing. The judge or justice of the peace decides whether to release your partner, or to keep them in custody until the trial. If they are released, they usually have to follow bail conditions. Bail conditions are also called terms of release. These are the rules your partner must follow after being released.

The conditions set by the police or the court, are very important. There are many different kinds of conditions. Common conditions in partner abuse cases include that the partner charged with a crime:

  • must show up to court on the date ordered
  • cannot contact the other partner
  • cannot go within a certain distance of the other partner's home or workplace
  • cannot have a gun or any kind of weapon
  • has limited or no access to their children

The police and the courts take conditions seriously. If your partner does not follow them, they can be arrested, charged with a new crime, and face a bail hearing. After the new hearing, they might be released on stricter conditions.

Sometimes bail conditions can say something different from existing access or restraining orders in family court. You might need to get a court order changed so that it is clear what you and your partner are allowed to do.

You may need

3. Let the courts know about other orders

Often, the judges in each court might not know what is happening in the other court. Unless you are in the Integrated Domestic Violence Court at 311 Jarvis Street in Toronto, the judges are different. They might not even know that there is another court case in a different court.

If you are not in the integrated court, it is important to let the judge know about the case in the other court. You should also let them know about any court orders that already exist. The judge can then avoid making an order that is different from an order from the other court.

Conflicting orders

Conflicting orders that say different things are confusing for the court and for you. For example, if there is a family court order for access and a criminal court order that there be no contact between you and your partner, your partner might be breaking the criminal order by going to your home to pick up the children.

Or, your partner might use the conflicting orders to their benefit and contact you to arrange access. They might use this to continue abusing you. You might be confused about whether your partner is not following a court order or just doing what they are allowed to do under the other order.

Court orders can change often. So, it is important to make sure the Crown Attorney has the most recent family court order every time you go to criminal court. You should also tell your family law lawyer or the family court about the most recent bail conditions.

You may need

4. Make a safety plan

If you're afraid of your partner, you should think about making a safety plan to keep you and your children safe.

Your safety plan can include things like:

  • an emergency escape plan
  • a code word to use with your children so they know when to run to safety and call for help
  • things to pack in an emergency bag if you need to leave home quickly
  • a list of important documents to set aside or copy
  • asking neighbours or friends to call the police if they hear fighting or loud noises, or if they see anything suspicious
  • learning the telephone number of a local shelter

You can also find support to help you make your safety plan.

You may need
Reviewed: 
May, 2016

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