Criminal Charges in High-Conflict Canadian Divorces

Divorce is hard at the best of times.  A high-conflict divorce is always extra challenging.  But if one of the spouses has been charged with a criminal offence, then the stakes are higher and the complexities, greater. 

Here are some points to consider: 

Divorce Act Provisions on Family Violence

We will assume that the criminal charges against one spouse stem from an incident of domestic violence against the other (such as assault, sexual assault, uttering threats, or forcible confinement), or against a child or other family.  

This falls within the concept of “family violence” as that term is defined by the federal Divorce Act.  That legislation was amended in 2021 to include comprehensive provisions addressing the topic. For these purposes, “family violence” is defined broadly to include any conduct that is violent, threatening, forms a pattern of coercive and controlling behavior, or causes a family member to fear for their safety. This includes physical, sexual, psychological, and financial abuse.

The 2021 changes to the Divorce Act also added section 16(3), which requires the court to consider any family violence when determining the best interests of the child.  This means that if one parent in a high-conflict divorce has been charged with a criminal offence, then that is one of the very significant circumstances that a court will consider when making decisions around parenting time, decision-making responsibility, and related issues.

Some of the relevant considerations are as follow:

• Assessing Best Interests of the Child.  In any legal dispute between the divorcing parents over their child, the court’s primary consideration will be the best interests of that child, as mandated by section 16(1) of the Divorce Act. Criminal charges related to family violence are a critical factor in this assessment. The court will evaluate the nature and seriousness of the criminal charges that the parent faces, together with the evidence presented. It will then assess the potential impact on the child’s safety and well-being.
• Parenting Time Restrictions.  If a parent is charged with a violent crime, the court may restrict his or her parenting time, or order that it must be supervised by a third party.  This is to ensure the child is safe during interactions with the parent. In extreme cases, the court may even deny parenting time altogether, if it deems that to be in the child’s best interest.
• Decision-Making Responsibility.  Criminal charges can also affect the parent’s entitlement to decision-making responsibility, which includes making significant decisions about the child’s education, health, and welfare. The court may grant sole decision-making responsibility to the non-offending parent, if it considered that the parent who is criminally charged poses a risk to the child’s well-being.

An example of the Family Court’s assessment is seen in Sivarajah v. Muralidaran, 2016 ONSC 5381, (which is admittedly an extreme case).  The mother of two children, aged 4 and 6, attacked their paternal grandmother with a knife, in front of them.  She then tried to drown both children in the bathtub.  She pleaded guilty to three counts of aggravated assault, spent time in jail, and was under probation for 3 years during which time she was allowed no contact with the children.  In light of these facts, and especially in light of the mother’s criminal charges and suspected mental health issues, the Family Court granted full custody to the father, with no access to the mother.

 

Criminal Charges and Court-Imposed Protective Measures

When faced with a parent who has been criminally charged, the Family Court can also implement protective measures to safeguard the child and the non-offending parent. These may include:

• Restraining orders
• Exclusive possession of the family home
• Orders for supervised exchanges of the child. 

These steps aim to minimize contact between the parties and reduce the risk of further conflict or violence.

Related: Ontario Restraining Order Laws: What Is A Restraining Order?

Impact of Criminal Charges on Mediation Opportunities

Finally, the presence of criminal charges against one spouse can foreclose opportunities for mediation with the other.  That’s because the spouse facing charges may have subject to court-imposed bail conditions, restraining orders, or probation orders – all of which can restrict his or her meaningful participation in the mediation process.  This can be highly detrimental to the overall outcome of the parties’ divorce, since their best interests, and especially those of their children, are optimally served when many or all of their disputes can be resolved without going to court.

 

Related: What Happens During Divorce Mediation