What should somebody do if they are charged with a domestic assault allegation while they are going through divorce or separation proceedings in family court.
The first thing to do is the same thing to do when charged with any criminal offence: call a criminal defence lawyer.
There are particular elements at play when an assault charge coincides with a family law proceeding.
Using a Criminal Charge to Advance Family Law Interests
Needless to say, the breakdown of a long-term relationship often involve very high emotions and huge stakes for the parties. Including assets and sometimes child custody or access concerns.
It is also a time when grievances may come to the forefront, or past abuse that was kept secret no longer must be kept secret. That is to say: it is certainly not the case that every domestic assault allegation (recent or historical) that surfaces during a divorce proceeding is false. Of course not.
But the unfortunate reality is that any allegation of recent or historical assault can have a major impact on a family law proceeding. In the short and long term. If you are charged with assault or sexual assault or assault causing bodily harm in such a context, you need to get legal advice on how to defend that charge in this unique scenario.
Defending Against False Assault Allegations
Firstly, the situation may help with the defence. That is, the advantage gained in making an assault allegation during a divorce proceeding raises the question of motive to fabricate. It is not proof that the allegation is false, but it can be a relevant factor in raising a reasonable doubt. Careful attention to the timing of the allegation, the nature of the allegation, its relationship in time to family law motions, or its use in such motions are all important factors in raising a doubt about the truth of the criminal allegation.
Undertaking or Bail Conditions as a Weapon
Unfortunately, if an allegation is falsely made, it can be used to disadvantage the accused in both the short-term and long-term.
The long-term use may be more obvious: for example, if one partner is seeking custody of the children, an allegation of prior violence by the accused may be used to obtain custody.
But the short-term impact can be significant as well. Almost all domestic assault charges will give rise to release conditions on the accused. No matter how serious or relatively less serious the allegations are, police or the court will almost inevitably prohibit the accused person from contacting the complainant, and from attending where he or she lives. That could mean that just by virtue of being accused of a crime, you might not be able to go to your own house. You might not be able to see your own children.
This is not the result of a conviction or finding of guilt, but just the reality of being charged and put on conditions that are premised on the protection of the complainant.
If you are fighting the allegation all the way to trial, these conditions can be in place for months or years.
You should speak to a criminal defence lawyer who can advocate for relief from this situation. They can attempt to do so through negotiation with the Crown or ultimately, if need be, a motion before a judge to replace the current release with a release with less onerous conditions. It can be a difficult battle, but for many accused it is worth the effort.
In sum, if you are involved in a family law dispute and have been charged with a criminal offence of domestic assault, sexual assault, assault with a weapon, aggravated assault, uttering threats or mischief to property, consult a criminal defence lawyer with experience navigating the defence of such charges in this particular context.
You can speak with a lawyer for a free consultation by calling Gold Law at 416-999-8939.