Separations are, at best, difficult emotional and psychological transitions for all family members. Separations can happen by mutual agreement, by one parent removing him or her self from the relationship or, in often the most difficult of circumstances, by the intervention of the criminal law through the laying of criminal charges against one of the parents.

As a family law solicitor who has also had an historic criminal law practice, I will be writing several blog articles tracking the legal impact of a criminal charge on the co-existing family law issues. This first article will deal with stage 1, called “arrest and release”.

The criminal process is activated by a police officer receiving a complaint by one spouse alleging that the other spouse (I will use you as the example spouse) has committed a criminal offence. I will use the example of an allegation of assault as the sample offence.

It is important to understand that, some years ago, our government identified domestic violence as a serious social concern.  The police today have been instructed that there be a zero tolerance policy toward domestic violence such that police, upon receiving a complaint of domestic violence, are to exercise no discretion but to lay the appropriate criminal charge against the other spouse. The criminal procedure I describe in this and the future blogs is standard to the handling of domestic offences.

I have had many criminal file situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

In the event that you are arrested, it is important that you make no statement to the police in relation to the incident. Any voluntary statement (verbal or in writing) made by you can be used in evidence against you at your trial.

After you are arrested, you will be physically removed from the home whether the home is a matrimonial home (marital relationship) or the family home (common law relationship).

At the time of your arrest, you should be provided with a caution against making a statement and notification of your charter right to access legal counsel.

Following your arrest, you will be released from custody by either your entering into a release undertaking at the police detachment or after the completion of a bail hearing at court. You will have an opportunity to obtain legal advice at the police detachment through accessing, at the very least, a legal aid duty lawyer through a toll free number. Please remember, however, that the legal aid duty lawyers’ advice is limited to the matter of your criminal charge and, as such, will not likely address any of the potential family law separation issues which will be impacted by the criminal charge.

Your release from custody will, in either event, be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship.  You will also be restrained from physically attending at the family residence where the alleged assault took place. You will be allowed to attend at the home on one occasion, in the company of a police officer, to remove your personal items.

It is important at the stage where these release conditions are being negotiated for the non-association/communication release clause to have an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a family court order or separation agreement.  It is important to understand that the release conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody .The release conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. The release conditions provide your spouse with informal custody and exclusive possession of the home while they exist.

It is difficult to negotiate a variation of these release conditions with the Crown Attorney until a charge brief has been prepared by the police. The brief is often not physically prepared until shortly before the first appearance date in court.

In the next article, I will describe the procedure of the first appearance in criminal court.