Charles Fair, Calgary Divorce Lawyer, talks about the parenting challenges when going through a divorce or separation. Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters. Canadian Centre for Men and Families.
Watch: Dealing with Criminal Charges During Family Conflicts
Calgary Men's Divorce Rights Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for almost 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Charles: Great. Thank you very much, Vanessa. It really is a pleasure for me to help out the CCMF, or the Canadian Center for Men and Families. It's, it's really, I'm really pleased at the work that they do in the sense of providing support for men who do, in my experience, go through the domestic breakups differently than women do. And so this is very good work that you guys are doing. So thank you very much for that.
So tonight's focus is on - why didn't that work there? There we go. Focus on family conflicts about parenting that are complicated by criminal allegations of domestic violence.
And I just wanna give a quick introduction to what can constitute domestic violence. And unfortunately, the list is very long. So they can include the way you would normally expect use of physical or sexual violence, and that would be assault, sexual assault, sexual offences against children, child pornography, trafficking persons, abduction of a young person - there's quite a list. Kidnapping, forceful confinement.
Another one, kind of a relatively minor one, breach of court orders and release conditions and probation orders, breach of peace bonds would be under that category as well.
Psychological or emotional abuse. That would be things like criminal harassment, uttering threats, and making indecent and harassing phone calls. Trespassing at night, although I don't think I've ever seen somebody get charged with that. And mischief, which is a kind of a catch-all criminal offence.
Neglect within the family, that would be failing to provide necessaries of life, abandoning your child, criminal negligence, that sort of thing.
And then there's offences related to financial abuse, and that could be theft or forgeries and fraud, that sort of thing.
An allegation of family violence can have significant, immediate, and enduring consequences for both the accused and the complainant. And we're going to, tonight, we're going to talk about the three top challenges that result from that.
So, number one, there's the immediate loss of liberty, home, and your family relationships.
The second challenge is how much time until you get to a final resolution, both of the criminal matters and of the family law matters.
And third, proving innocence and regaining parental rights. How do we do that when you've got criminal charges that are in the process of being worked through the court system?
So dealing with the immediate losses, and this is really the first stage here. Oops. The order on this is a little funny. The arrest process. I'm going to talk about that briefly because unfortunately there's very little that you can do to discourage the police from laying charges. But there are things that you can do that might minimize the chance of those things happening. And so dealing with this, this is a good place to start.
So if you think that your partner is likely to raise these kinds of issues, and you've got proof that she's made false allegations in the past, then one good plan you can do is get into family court in advance and get the kinds of orders that will set you in a good stead, a good place, if the police do show up making false allegations.
The second thing is, you need to recognize that the police are oftentimes working under very strict policies that basically say, you know, if there's a reasonable and probable grounds to believe that a criminal offence has been committed, if it deals with the family violence, they really have very little discretion, they're going to lay charges and start the arrest process going.
In the old days, the police would have more discretion to try to intervene and try to get people to calm down. Maybe suggest that you get a timeout and deal with things informally.
But those days are gone. And so now all it takes is, unfortunately it might only take one out of two officers that think that there's a reasonable and probable grounds to believe a criminal offence has been committed and then the arrest process starts.
The arrest process involves the police obviously detaining you, they've got to read you your rights, and they may want to interview you. And, as part of that process, you'll often hear standard advice that's given to people is don't talk to the police when you're being charged or if you've been charged with an offence because there's very little that you can do to change the situation. And almost, as they say, anything you say can and will be used against you in a court of law. And there's a lot of truth to that. There's very little that you can do to actually
help your situation. And it's very difficult to stop the course of things just simply by what you say to the police.
But there's a little bit of a difference. I think that if the police are showing up as a result of a 911 call, and they are in your home, and they are doing an immediate investigation, it probably doesn't help your case to not say anything. But in this case it's important to remember a few tips. Number one, you gotta stay calm. But not overly calm. I mean, this is an upsetting thing. If you seem strangely calm, that's going to cause some problems. You don't want to be able to control either. Criticizing the police for showing up, saying it's ridiculous that they're there, you know. Threatening the police in any kind of way. You know, there's all sorts of things that are not good things to do. Running away from the police is also a bad idea because it will affect the second processor's making bail.
The other thing you can do is try, you can maitain the control of the discussion to some extent, but this is a very difficult thing to do. And so one has to be very careful. You can say too little and you can definitely say too much. And it takes a little bit of practice, and the ability to think on your feet, to know what that difference is. So in general I think the best advice is to say less rather than more. You know, and hope for the best, I think is probably the best advice there.
Now, the making bail, that's the catch-all phrase here. The normal process is that the police are going to take you into an arrest processing center, whether it's a local police station or wherever they're going to do it, and they're going to, in most cases, release you on a promise to appear that has conditions.
If they are concerned that there is a risk that you're going to go out and cause harm, or do something really stupid, or that you're going to just run away and not show up at court, they may require you to go and have a bail hearing. And it's important, really important, that you get legal representation for that bail hearing, because there's certain things that you can do to help minimize the effect of the arrest.
The release conditions that are often in place - maybe I've, here's - I'm just going to skip over to the next slide here. So one of the things that your criminal defence lawyer is that they can advocate on your behalf to ensure that the release conditions are not overly restrictive. And I'm just going to list them here.
You want provisions for safe communications and parenting time. If you don't put those in, you will find that the release conditions will say no contact, you can't go anywhere near the other person, and you can't have any contact
typically with their children, and possibly other family members, and you can't even have indirect contact, so it may be difficult for your lawyer or a friend or a family member to try to start the discussion going if the release conditions say no direct or indirect communications or contact.
Secondly, it's usual to have a clause in the release conditions that allow you to go into your home to access or retrieve personal belongings. And if there's some, sometimes the police, or usually the police will be supervising that, and they may take an overly restrictive view of what you can take. Things like, if you need things for work such as a laptop computer, if you need financial documents for your case, it may be appropriate to have those addressed early on, rather than try to vary conditions later on.
And thirdly, restrictions ongoing close to the, having the no-contact restrictions that say don't go to a particular address, don't go to your partner's residence or place of work, that might put restrictions on your ability to work, if you're working from home, or if you're working close to where she works or lives.
And the justice of the peace or the judge hearing, the bail hearing, isn't going to know about that unless you tell them and you may not have the presence of mind to think about it at the time, because you're, if you're overwhelmed with whatever's going on. A criminal defence lawyer is going to be able to address that for you.
Then, lastly, consider whether possession of the home is appropriate. And this can be really difficult because the basic rule is, you know, a victim of domestic violence is generally not going to be asked to leave the home that she's in. It's going to be the alleged perpetrator.
And just, by the way, I'm using she and he here to say that the, she is the person who's the complainant and the he is a person who's accused. It does go the other way, and I've got experience with representing situations where the she is the perpetrator and the he is the victim, but just for convenience, I'm just saying he and she in the traditional stereotypical sense.
Alright, so, just going back to this slide here, the other thing is that you're going to be faced with an immediate loss of your family connection, so it's important to start the process of making an application to the court for contact at least with your children. And that is one of those other things that goes into the release conditions, is allowing for communication and contact that might be permitted by a court of competent jurisdiction, which is typically the family court. The
criminal courts don't view themselves as being competent to make decisions about children.
The other thing I want to talk about is, one of these things that happens is, once this ball gets rolling, it's difficult to stop. Just like the police are generally bound by policy considerations that says if there's a reasonable and probable grounds to believe that a criminal offence has occurred and it involves domestic violence, the police are going to have to charge almost they've very little discretion to not charge, arrest you. The crown, similarly, also has a similar kind of policy that they're likely going to continue the prosecution, there's a reasonable prospect of a conviction, even if your partner objects to the case carrying on. And that often happens. They don't, the partner doesn't really want this to go on because they just got the police involved.
They thought that this was just going to resolve that, maybe a temporary timeout, or maybe everybody just needs to calm down. Maybe the husband does needs a wake-up call. Or whatever it is, that was prompting the initial call. But then they realize that, ooh, life is not so fun here without the other parent involved with the kids. And I feel really badly what's happened. They start to lose a little bit of control over the process. So my last comment here is the complainants do not have control over what happens. And the crown may resist changes to the release conditions once they're set in that initial bail hearing. So that's why it's important to have that representation at the initial bail hearing. If the release conditions have not been set properly, a lawyer can negotiate and ask the crown to consent to changes to the release conditions. If the crown doesn't consent and they are reasonable, it is possible to make an application to the court to review them. But, obviously, unless it's really obvious that an error was made, the crown is going to be resistant to making changes.
So I want to talk about the differences between the two courts. The criminal court is there to decide whether a person's guilty and how the public is to be protected. And that's where things like release conditions come in and sentencing issues that concern as well, and what punishment does the person deserve. And the criminal court is balancing these objectives with certain procedural rights to protect the accused person from a wrongful conviction.
Now the family court, on the other hand, is deciding something very different. The family court, again, we're focusing on parenting decisions tonight so the family court is deciding decision-making responsibility, or what's typically called custody, and parenting time, or what's traditionally been called access, and when the court is doing this, they are considering only what is in the best interests of the child. There are still procedural protections and evidentiary rules
that come to play because it is a court process, but the balancing is very different than in the criminal court system. And the facts that the two courts are interested in are quite different.
Now, what is in the best interests of the child? And the court is making decisions to ensure the greatest possible protection of the child's physical safety, their psychological safety, and their emotional safety.
The court also has an obligation to consider any civil or criminal proceedings that are relevant to the safety or wellbeing of the child. And this is set out both in the Federal Divorce Act. It's also set out in the Provincial Family Law Act.
Now, the court also has to consider family violence, including its impact on the safety of the child and other household members, the child's general wellbeing, the parenting ability of each of the parents, and the ability of the parents to cooperate. So you can see that a lot of the allegations that are made on the criminal side can certainly affect the family court's decision-making.
Now, how do we deal with that? Well, it's important to recognize that the court is also considering the child's need for stability - I'm going to say the heading here, notice that your focus needs to be on - that, when you're focusing on, when you're dealing with the family court, you kind of have to set aside the criminal issues in some ways, and we're going to come back to that, but your focus really does need to be on what the standard considerations that the family court has. The child's need for stability. The history of the child's care. The proposed plans for the child's care and upbringing.
And, you know, you may very well have had a very active role in the child's life. Your partner may not be the most stable person, especially if they're prone to making false allegations. And you may have actual better plans for the child's care and upbringing, it's important to focus on those things when dealing with the family court.
The court will consider the nature, strength and stability of your relationship with the child. So, you know, you need to think about what is your relationship with your child like? What is it? What are they like? What's their - if they could be a superhero, what would their powers be? You know, think about how you know your child and that will demonstrate the kind of relationship you have with them.
Your ability and willingness to care for and meet the needs of the child, it's kind of standard stuff but, again, this is what you want to focus on.
Notice that the family court is also going to be considered your ability and willingness to communicate and cooperate on issues affecting the child.
And I got to say that this is an issue that arises whether or not there's criminal charges, the quality and how you communicate with your partner regarding children is very, very critical. And it takes some skill. And, if you can, it's, it's not a skill that is too difficult to learn, it maybe takes a little bit of practice, but once you get to it, you reduce, you have an opportunity to reduce a great deal of conflict. Unfortunately, once you've got criminal charges in place, your ability to send text messages or emails may be eliminated. You may be required to go only through counsel. So one of the things that we want to do as a lawyer representing somebody in this situation is we want to try to get the parties able to communicate in a healthy way as soon as possible so that they don't have to rely on lawyers to do all their communicating about the children for the many years of the child's upbringing.
And notice that the court also has to consider the benefit to the child of developing and maintaining a meaningful relationship with you. It's not just that if you, maybe you didn't have the best relationship with your child in the past, maybe you were working too much, there was too much stress in your life, and you're now recognizing that, you know, you would like to have a better role in your child's life. And just because there's a criminal charges against you doesn't mean that that door is closed.
Obviously the more serious the charges, the more evidence there is to support the charges, the harder that is going to be to open that door, to start improving what you might not have had before, but it is there. And oftentimes the court will bend over backwards to help a parent who's not had a great role in their child's life, but is willing and shows real sincere willingness to step up to the plate and start acting like a parent, the court will typically be quite supportive of that. Because they recognize that there really is a benefit to the child, to children, of developing and maintaining meaningful relationships with both of their parents.
And obviously this, related to this is your ability and willingness to exercise the powers, responsibilities, and rights of parenting. And again, these are the considerations that are going to be in place no matter what, whether there's criminal charges or not, but again what you want to do is focus on those issues. The views of the child are sometimes taken into account and the views of other guardians of the child, that's those are some kind of some standard things here, but that's really beyond the scope of this talk.
Now, going back to the criminal side, the issue as well, the third challenge we said is proving innocence and regaining parental rights. We've talked about the regaining parental rights. Now, how do you prove your innocence? Well, the first thing is you do not actually have to prove your innocence. The prosecution has to prove your guilt beyond a reasonable doubt. So that leads to a different kind of strategy than what there is in, the family court.
Now, here's, kind of, some final tips that are very important here. So first off your criminal defence lawyer and your family lawyer must work closely together or be the same lawyer. And this is because there's several issues that come up. First off, crown disclosure restrictions. And this is where, here's where the problem arises. The Mom, and again, this is, this could be the other way around, but for tonight we're just saying the Mom goes to the police and makes a false allegation.
Then Mom applies to family court and says, I've complained to the police, and they've laid charges, and have arrested the Dad. And, therefore, the family court needs to pay attention to that and grant me full custody and no parenting time with Dad. But on the Crown's disclosure, we see maybe that the complainant or the Crown doesn't have a very good case at all. And the criminal lawyer gets that disclosure under certain restrictions that they cannot use that disclosure for anything other than the right of the accused person to make a full answer and defense to the criminal charges.
So if you are representing yourself, you are going to get your full, you should get the full disclosure, possibly. If you are represented by a lawyer, a criminal defence lawyer, they may not provide you with the entire Crown's disclosure.
I was working on a case where exactly this situation that happened, but what the Mom did is she made a whole bunch of notes for her lawyer on the family law case, and then took those to the police and they ended up in the Crown's disclosure file, which was essentially all sorts of stuff that had really very little to do with the charges. Because the charge is actually didn't involve the children. Nothing happened in front of the children. There was no domestic violence. In the case that I'm thinking of the allegation was a sexual assault between the partners that happened when the children weren't involved. So it really had very little relevance to the decisions that the parent, that the family court was having to make. But the Mom was able to say he's been charged and was very, very circumspect, I think is the right word to say, and she wasn't really disclosing the details of what the criminal complaint was, and the criminal defense, or the criminal prosecution, was saying, oh no, you can't use this, this information, on the family law side.
I think that is a problem. It's a legal problem. There are some ways of working around it. And I think I'm getting better working around those restrictions, but they are there. And you may not even know that you're not getting the full disclosure because your criminal defence lawyer isn't telling you what you need to know. And the family lawyer may not know what the criminal defence lawyer should have in their file. And the family lawyer needs to know what to ask the criminal defence lawyer.
The other thing is the - I'm just going to go to the second point here. I could keep talking on some of these issues here.
There's delays that result from the jeopardy concerns. This is kind of a weird way to say this. But here's what happens is the criminal trial process can take, on lower level offences, it can take up to 18 months to get resolved. That's a long time in a child's life and you don't want the family court saying, well, you know, we still got these criminal charges pending, so we're just gonna operate that this is on the assumption that, better safe than sorry, and minimize Dad's contact with the kids while these charges are working their way through the system.
And that results - and then on the family law side, the lawyer may be afraid of having the Dad testify about anything that might relate to the criminal charges, because what the Crown, what the family lawyer might be concerned about is Dad saying something inadvertently that may get used against them in the criminal side.
Now, there are rules against this, the information going from one set of, one court to the other. And so, yeah, the third issue that I've been identified here is the use of family evidence in criminal court and the use of criminal court evidence in family court, that is generally barred by most rules. However, you can see that that has some, there's some good reasons for that - some of these restrictions - but it can create a real harm, especially when there are false allegations being thrown around. And especially when the complainant is claiming the support of the other court system - so claiming the support of the criminal justice system in family court, and in criminal court saying, yes, well, I've got, the child protection people are involved, and the court has made this order. And so, therefore, you've got to keep prosecuting this person because he must be guilty. There's a ton of evidentiary problems in that. And the more closely the facts are related between the criminal case and the family law case, the more there is an opening to get some of the actual evidence moved between the two files.
But there's also, even if that isn't the case, there's opportunities to ask questions that go to motive, questions that clarify what the nature of the complaints are, and that sort of thing. So there's a lot of very difficult things. It's very important to get legal advice when it comes to working through the two court systems to try to keep that process as short as possible. We mentioned the, sorry, get to a final resolution or an acceptable resolution as quickly as possible.
I mentioned before the delays in the criminal court, there are similar kinds of delays in the family court. And what often happens is you'll get initial orders that are made out of an abundance of caution to say, well, you know, we don't really know, but better safe than sorry. Those kinds of orders can end up with a very sticky life to them and become harder and harder to deal with because they start entrenching a new status quo. And, as you know, the courts like to have stability in a child's life. So you need to work quickly to counteract the institutional delays that are stuck in both the family courtside and on the criminal side that allow a complainant to create a new de facto status quo that may become harder and harder to deal with over time. Not impossible, but it does become harder.
So those are my comments for tonight. If you have questions, we are your champions for justice when life gets messy at Fair Legal. Or at Fair Legal, we are your champions for justice when life gets messy. So -
Vanessa: If you have questions, please put them in the chat and send them to Melanie Seneviratne. She will read them out loud to Charles.
Melanie: So actually at this time we actually do not have any questions. So we can give it a couple minutes, if anybody wants to send me a chat or whether - oh, wait, here comes one.
Okay. So, this first one says: "I was assaulted and had my kids taken by force by my spouse with her family. They lied to have me arrested and the RCMP ignored my historic abuse evidence, physical evidence, and witnesses. And I was forced to settle for a peace bond due to financial concerns. They refuse to arrest those people that assaulted me, stating they don't do, they don't do dual charges. I was told that the people responsible for the attack will never be arrested by the RCMP, so I am laying a private information against them for the assault. Any advice?
Charles: You need to keep your eye on the right ball. And that is you want to restore your family relationships and you need to be very careful about the allegations about using the criminal justice system to get there.
Probably the first mistake is to recognize is that the RCMP or any of the police are really stuck, they're not the ones to decide the case at all. And so it doesn't really matter if, you know, once they made that charging decision, you know, they're not - and you're just saying, well, if you're gonna charge me, charge her as well, that's not a particularly winning argument.
So it really needs - the peace bond issue, we dealt with that in another webinar. I think that's available on our - I'm not sure where it's available. I think somebody, Vanessa or Melanie, could post a link to it. The peace bond is, unfortunately, that's one of the reasons why I got into criminal laws is, after practicing family law and seeing the quite difficult impact that comes on a family law situation when the peace bond is signed as a resolution of the criminal charges. Because it seems very attractive. You don't get a criminal record. And you're not technically admitting to the actual criminal offence. What you're admitting to is that the person had, the complainant had a reasonable basis to have fear of you. And you can see why that gets used, or how that gets used, on the family courts side.
But quite often, unfortunately, the family law courts don't understand that the peace bond is not an admission of guilt about the criminal offence, it's an admission about this reasonable basis for fear standard, and that needs to be clarified on the family courtside. And that you might get some better mileage there. But, again, you want to focus on what's in the best interest of the children and focus on those factors that you can demonstrate that it's in the best interest of the children to have a relationship with you. And that is not entirely consistent with trying to get the other adults in their life arrested and charged and then sent to jail. So, as I say, you've got to keep your eye on the ball and decide what the right ball is to keep your eye on.
Melanie: Okay. Great. Okay, the next question is, if any, what can be the repercussions on the person making false allegations? Can they be sued afterwards or is there any follow-up for the person, or persons, making the false allegations?
Charles: That is a difficult question. If the allegations are ultimately shown to be false, and completely groundless, there may be a claim for malicious prosecution, or abusive process, these are difficult actions to take. And the real question is who's the target of the complaint. And I was just having a discussion here with one of my team members today about this very problem, is that there doesn't seem to be a good way to call participants in the system to account for supporting liars and makers of false accusations.
So you can use the civil system to bring, a claim for damages, for abuse of process, and malicious prosecution. There's another one which is intentional infliction of emotional distress that may or may not apply. There's different elements to each of those things, but there's not a lot of case law with this stuff. In this area.
We're trying to work on a few cases now, or at least one case, where we think that there's a, we've got good grounds for going after the other party.
Melanie: Okay, great. What is considered - oops, just a second. Sorry, I lost my question. What is considered a reasonable time from the time of being charged until the case gets to court? Two years seems a bit onerous and unfair.
Charles: So the general rule is, there's a case called Jordan that was established by the Supreme Court of Canada that kind of set out a timeline for getting to court on summary conviction matters. That's where the Crown has elected to pursue a sentence that's less than two years, essentially that's the shortest way to describe it, or use the American term a misdemeanour. So when the Crown is proceeding as if the case is like a misdemeanour, they've got to get it to trial within 18 months. If it is a more serious case in the chart and the Crown is proceeding by way of indictment they've got a longer period of, I think it's 30 months, on that one.
But here's the problem is that the time is counted against the Crown prosecutor. And if the defence counsel has contributed to the delay, then that time is counted against the defence counsel. So that's all you can end up with a case going past the 18 months or 30 months deadline.
Or somebody may not have noticed and may not be bringing the right application to have the case dismissed because it's taken too long to get to trial. Or have the proceeding stayed, because it's a breach of your charter rights to be tried within a reasonable time.
Melanie: Okay. Great. Next question is how can you prove in a future court case that you're a more suitable parent after committing a criminal offence?
Charles: Well, you know, there's a great theme in our society, the themes of redemption and turning your life around. And I got to say that the courts in my experience really do support that.
Now, that being said, it's a difficult, it may be a difficult road. Because, depending on the seriousness of the offence, there may be a very little
opportunity to demonstrate your ability to be a good parent and to satisfy those tests that are really what's in the best interest of the child.
I do have a client that is serving a life sentence for murder and understandably, the parenting order is he gets zero contact with the children. I was able to convince a judge to change that order, to open up a tiny window, that if the children, or if either child wanted to have contact with their Dad, which they may very well want to do, regardless of what their Dad has done, that these children would not be turned away because of a court order with a blanket, you know, barrier to them, having contact with their Dad. However, Dad still can't contact them or try to encourage them to have contact with him. So it was a very, very small victory. But then my client was in jail for murder. So, you know, it's - and then kind of a little sidebar on that one. The judge that gave me that tiny victory was also the same judge that sentenced him to jail. Although it wasn't, I wasn't his lawyer on the criminal proceedings on that.
So it is possible even in a really dire situation like that.
The other thing that can happen is if you have reasonable expectations. So a reasonable expectation is that if you haven't had any contact for a long time, and now all of a sudden you show up as, you know, the child's Dad and you take him for a week on vacation, this is going to be a real scary process for the child. And so the court's not going to let you do that.
The court's going to say, well, let's play this real safe and go real slow and start with, you know, maybe a visit, a supervised visit. Maybe under the watchful eye of a professional. A child psychologist or social worker, somebody who's got experience in how to reunify in - it's called reunification therapy. This is an intervention that is explicitly allowed by the court under a Practice Note 7. And the idea is here, is because the courts recognize that a parent might still have a meaningful role in the child's life. I mean, think about it. You've done something really bad and you've turned your life around and you're making amends, isn't that a really good life lesson for your kids to see?
So there's arguments to be made. It's not a lost cause. But it is difficult and you have to be willing to do the work to say, yeah, I, you know, I'm really trying to figure out why it is that I went so badly off the rails and I think I've got some insights here. This is what I've done to try to fix it. And it's gotta be something more than just, yeah, I've taken the mandatory courses that, you know, that they gave me. You know, the anger management courses that are, you know, everybody's sitting there and not really paying attention. It really does need to be a real sincere effort and make some changes.
And part of that, it's also important to get the support of a community like the Canadian Center for Men and Families. Get these church communities or other faith communities, you know, get the support of the people around you, because that's also going to be important as you're dealing with turning your life around. It's not an easy thing to do all by yourself. So getting that support is also important.
Melanie: Okay, great. So this one's a little bit long, cause it's a bit of a situational. So it says I'm currently self-representing and meeting with the Crown and the judge for a trial confirmation tomorrow morning. I have been -
Charles: Really? Okay!
Melanie: This is good timing! I've been falsely accused of assaulting my son. In February, I consented to an order allowing my ex to relocate the children to Nova Scotia, with 50/50 guardianship and decision-making. I also have the children for 30 days in the summer, and two weeks at Christmas. I am concerned about self-representing as I have ADHD and get extremely emotional when I talk about the separation and the false accusations. Do you have any advice for when I meet the Crown and judge tomorrow? They notified me they will assign me court assistance to cross-examine my son on the stand.
Charles: Aye aye aye. Okay. I've got to preface this, and I should've said this earlier, you know, I, the purpose of this webinar is to give general advice. And it's really difficult for me to wade in with specifics on a particular case because there are a lot of moving parts. There are some questions I have, is why it is that, if there's, and again, the child is a witness, and I don't know the age of the child, and this is a trial that's starting tomorrow, or is this a pretrial?
Melanie: It just says a trial confirmation. So maybe it's a pretrial?
If that person wants to send me a quick message to answer those two questions.
Charles: Yeah. You're going to have to, if it's a trial, and you're working with a defence, with a duty counsel, their -
Melanie: Charles, the trial is in 30 days. So it's probably a pretrial, right?
Charles: Yeah. So make sure you're ready to go. Yeah, this is, this is a tough one.
You know? And, you know, the most important thing is to stay calm and recognize that - I just want to say one thing is, on a criminal trial, you don't have to prove your innocence. What the crown has to do is prove that you're guilty beyond a reasonable doubt. And so all you have to do is create a reasonable doubt. But the questioning that you, the questions that you ask, or you try to get the duty counsel to ask, might inadvertently remove all doubt. So, you gotta think very, very carefully about the questions that you ask to cross-examine whoever's testifying against you.
The other thing to remember is that, what people often think is that if you can somehow attack a person's credibility that you, and show that they're lying in some respect, that this is going to help your case. It can help your case, but it can also damage your case in the sense that it gets you focused on the wrong thing. If you're going to try to attack somebody's credibility through cross-examination, you have to make sure that it's focused on the actual facts that are relevant to the case. Not trying to prove that the person is a liar and therefore nothing they say can be believed. That's a very, very difficult thing to prove because a judge is going to be very reluctant to believe that you can't believe a single word out of somebody's mouth. And, in those cases, you usually just have to let the person talk and the judge will figure it out themselves.
So you can't try to paint this person as a complete liar, because what you'll probably do in that process is have the evidence of at least one thing left as unchallenged, because what you're really trying to do is attack their credibility and then ask the court to infer, well, they must've been lying about this other thing. That's a very difficult and dangerous practice. So you have to focus -
Melanie: Just so you know, Charles the son, just, if this makes a difference, the son is seven years old.
Charles: Yeah. So that's - you shouldn't be doing it yourself. You know, I would almost be inclined to say, you don't cross examine a seven year old. You just leave it alone.
But again, I don't know what the facts are, right? Because, when you cross examine a seven year old, you gotta be really, really, really careful, and besides, you've got to think about it from the child's perspective. They're being asked to testify against their Dad? The Dad who gets time with them in the summer? This is an unusual thing. So your best bet, and going back to something I said earlier is, the real trick is knowing when to not say something. And the trick is to know how much to say and when to stop. Same thing applies to cross-examination. You want to ask questions in a very, very nice way, but then you
have to know when to stop and appreciate what this experience is for your son. And the very fact that you are, or the child, the very fact that you are doing that in a kind and respectful way may help you, but my inclination would be, unless you can be darn sure that you're going to get it right and not start unloading your emotional state onto your kid, is you've got to stay away with that one. Stay away from that one.
Now, duty counsel may get, duty counsel may step in and do any kind of questions. But if there is questions they gotta be really, really simple. I see Vanessa has made a comment there. And as I said, I'm going to go back to my other comment, you know, reach out to the support of the folks in CCMF, because if you can try to understand what it is from the child's perspective, I think that will serve you in a long way.
Again, think about what's the goal here, you know? Because even if you end up being convicted, it doesn't mean that there's going to be a sentence. It's going to be a, you know, depending on the nature of the offense, there's gonna be some real lifetime consequences, unfortunately. Those consequences may not apply to your relationship with your family. Again, it depends on the nature of the offense. So if it's the sexual offense you're into some real dangerous territory there.
And, you know, you're better off making sure that the circumstances under which the child made disclosure and was questioned, how much other folks were involved in planting ideas in the child, and, and that sort of thing, that's - because sometimes the initial investigations of the child are not done very well. Sometimes what you've got is a parent who is seeking an advantage, is planting bad ideas in the child's mind. And, you know, if there's an opportunity to really push on that angle, that might be a better way to go. But again, it really depends on particular facts of the case. And the quality of each of the witnesses that are possibly there. You know, who are going to testify.
Melanie: So we are at time, but we have a couple more questions which I think you can answer relatively quickly. So maybe we'll just go an extra 10 minutes or so, just to finish off these questions.
Melanie: In response to that situation, does the person have an option to ask the judge to delay the pretrial conference until they can get proper legal advice? Or is it too late for that?
Charles: Well, it kind of depends. Now, there may be opportunities to, and unfortunately this is a problem with the whole legal aid system, the legal aid system may, you know, you've got to meet certain low-income qualifications. And so, if you're above that threshold, you may it very, very difficult to retain a lawyer.
There are some provisions for saying, look, if you, if you're facing very serious consequences and you don't have the means to hire a lawyer and legal aid is not, because you don't meet those technical thresholds, there is a possibility to apply to the court to get an order that legal aid pays for a lawyer.
Now, that takes some work. I think it's called a Rowbotham application. I'm really bad with names.
Melanie: That sounds right.
Charles: What's that?
Melanie: That sounds right.
Charles: Yeah. So I, you know, it is possible to do that. If you've tried that in the past and failed or were never aware of that possibility, you could say that to the judge and ask for the thing to be delayed, but the judge has got to be maybe skeptical that, what, you're asking for a lawyer now, when it's crunch time? You've had lots of opportunity and the judges have probably been saying all the way along, you know, you should get a lawyer, you should get a lawyer, are you really sure you want to do this? And if you made repeated statements to the court, like, I can't get a lawyer, I'll do this myself, the court might give you a hard time asking for a lawyer at this late stage.
But, don't anticipate what the answer is and don't ask the question, right? If you really think you've got a shot at getting a lawyer and you really want to make that effort then you can, you know, certainly ask the court because the worst that can happen is they say no. They're not going to punish you and say no, and because you asking us now, you're hereby found guilty. No, it doesn't work that way, okay? All they didn't do is say no.
And the courts are concerned about fairness, particularly in the criminal process. And, you know, and if you've got some difficulties in emotional regulation when you've been in court before, you know, maybe just, you can say, look, I just gotta say, I recognize I've got some issues with emotional
regulation and I've not done a good job asking for a lawyer in the past, and see what the judge says. Those are some thoughts here.
Thank you, Vanessa. What kind of lawyer doesn't know cases? Sorry!
Melanie: These two, kind of, may go together? We'll ask the first one. What have you used, or what can you recommend, as a reintegration process that is most efficient?
Charles: That one, it really depends on the age of the kids, how long of a separation, what the nature of the allegations were, what kind of resources the family has. There really is no hard and fast rule. Generally, as I said before, the courts will want a stepped process. And if the court is really displeased, shall we say, with the conduct of the parent that has resulted in the no contact, they may well be inclined to have a fairly short reintegration process.
I am not, again, it also depends on is it, does it need the assistance of a professional and what what's the advice or the professional given their observations of the interactions.
Melanie: Which does kind of lead into this next question. Can reunification therapy be used for children of the marriage who are now adults and over 18, but still being manipulated by the alienating parent?
Charles: Aye aye aye. You know, sadly, no. The answer is no, unless the child is, you know, suffers some mental disability. Because if they're competent, unfortunately the baggage they have in life is going to be that carrying around a bunch of baggage. That, you know, it's going to be up to them to figure that out.
Now, now, again, if there's an order prohibiting contact with the child and the child's now an adult, I think that it's reasonable to get rid of those kinds of prohibitions. Again, that really depends on the facts. So that might actually be one way to stir the pot and get somebody at least thinking about it.
Melanie: Okay. The next one, it's another situational one. I am a Dad with three kids, youngest 16, who is suicidal and in hospital. The kids continue to alienate and accuse Dad of disproportionate abuse. aka spankings. Hospital refuses to allow contact due to child's wishes despite filed separation agreement. Mom is not helpful, but not actively blocking. Dad wants family therapy, but the family's refusing, and has no money for representation and is considering surrendering to the police to have his version heard and hoping for mandated therapy. Any thoughts?
Charles: So there's outstanding charges? There's an outstanding warrant for the parent's arrest?
Melanie: It just says the kids continue to alienate and accuse Dad of disproportionate abuse. The hospital is refusing to allow contact you to child's wishes despite a filed separation agreement.
Charles: So there's a lot of moving parts there. Going and -
Melanie: Sorry, he did say there's no active charges, he's just looking to get ahead.
Charles: Yeah. Going to the police is not getting ahead. That's probably - because again, the reason why you would be turning yourself in is because you're admitting, basically, that there's reasonable and probable grounds that a criminal offense has occurred. So I'd stay away from the police.
Again, the children are older, I presume, and the question is, how do their wishes get heard by the court? One of the parents is saying to the court what the children are saying, but that is suspect because it's hearsay. And that parent may have an interest in not accurately conveying what the children are saying.
So one of the things you can do is ask the court for an order for a children's council to be appointed and that is automatically paid for by legal aid. I don't even think you need to have an income qualification test because the children, unless the children have got, you know, they're trust fund babies, or they've got, you know, assets of their own, the legal aid will regard that as meeting the qualification, I believe.
So you do need to get that order appointed, made by the court, and you can reach out to legal aid and they will give you some assistance on how to go about doing that.
Melanie: Okay. Probably the last question is any tricks on how to get a case dismissed?
Charles: You know, we, as I said, there's some real restrictions on the evidence that can be used. But there are some workarounds. If you have an idea on the civil side of the, I didn't say this before but I should have, that what happens in with family lawyers is that they don't want to, maybe I did say that they, you don't want to jeopardize the criminal case by having testimony come out and exposing your client to questions, but that doesn't say that you can't question the
other party and, on the civil side, and if the issues are exactly identical between the criminal process and the civil, family side, then I think that there's a good argument that that evidence can be used. And we recently did that on a case, it wasn't a family case, but it was a restraining order case on the civil side, and there was criminal harassment charges on the other side, and we did an extensive questioning of the complainant on the civil side, the same as the family side, and then sent the transcript over to defense counsel. And it was just golden. The charges were just completely dismissed.
The other thing that I've been able to do is use questioning of the criminal complainant in a procedure called a preliminary inquiry to call into question their motives. The problem is, is that on sexual offenses or offenses that don't have a criminal jeopardy of a 14 years or more sentence, then you can't get that preliminary inquiry process going on the criminal side. And so, so there's no real opportunity to test the evidence on the criminal side to get, on the issues of motive, and get an early dismissal of the case. I was able to do it because I just snuck under the wire before they removed that possibility on that case. And then the crown withdrew the charges shortly afterwards.
But, again, if you can use that, the questioning on the civil side, you might have a chance, but it's important, I think, to have defense counsel and family law council working together on that. And probably it makes sense to have the same person doing it, but -
Melanie: Okay, great. So we're at the time for the day. I just wanted to share that if anybody wants to watch any of the videos for the past webinars that Charles has done with the CCMF you can visit our YouTube page. Just search out Fair Legal.
The videos are also posted on our website, fairlegal.ca, as well as I believe they are linked on the CCMF's website as well. We do them monthly, so there'll be one every month. Normally it's the last Thursday of the month.
Vanessa: Thank you so much, Melanie, and thank you Charles for that very engaging and informative presentation, I learned a lot, and thank you both for volunteering your valuable time.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.