Why Being in Both Family & Criminal Courts Simultaneously is Hell: Top 8 Tips on How to Survive Concurrent Family & Criminal Proceedings

There’s no question that being dragged into a court proceeding is among life’s most stressful events, regardless of what kind of proceeding it might be. But what about if you’re stuck in two simultaneous proceedings, in two different courts having completely different rules, requiring different lawyers and different court dates?

One of my “things” seems to have evolved as helping clients with simultaneous family and criminal court proceedings. Usually it’s the criminal case that starts first. Though it might be the family case. Sometimes one spouse is charged with something. Sometime they’re both charged. The result can be absolute spousal non-communication for any purposes bail orders, combined with prohibitions on seeing children.

But the non-communication - even through lawyers - means family court disputes over children, property and support can get frozen for many months in an ice age of criminal procedure, where your lawyer can’t even find out if your spouse has hired a family lawyer, as that enquiry could itself be a breach of a criminal no contact order. The inevitable result is a great big intractable legal mess, even when both parties want to make some progress resolving the family law issues.

Here are my top 8 tips on how to make progress in surviving concurrent family and criminal court proceedings.

1. Request Release Conditions at Time of Arrest or Bail Hearing Permitting Indirect Spousal Contact Through Counsel for Purposes of Family Proceedings

You might think you’ve got no leverage to negotiate anything at the time of being arrested, but you could be surprised at what you can get from an arresting officer or a court if you ask nicely. Even if you think family law proceedings are unlikely in your case, if your charge has anything potentially to do with “domestic violence” you need to anticipate that family law might later get involved. So ask the arresting officer or justice of the peace in bail court for an indirect contact exception through legal counsel with your spouse for the purposes of family law separation or court proceedings.

That indirect contact through counsel exception dealt with up front might save you months of misery trying to later get a consent bail variation through the court. The Crown (and courts) will often favour a “cooling off period” for any subsequent contact between spouses after a domestic charge is laid, making immediate negotiation of a variation a challenging process. Addressing the indirect contact issue up front with the arresting officer will so simplify things.

2. Avoid Indirect Contact Temptations

Don’t under any circumstances try to indirectly contact your spouse to deal with family law proceedings, or to respond to his/her initiation of those proceedings, without a no contact order exception if you’re bound by criminal release conditions requiring no contact. There is no “necessity” exemption to no contact.

3. Resolve Criminal Proceedings ASAP

As slow as it might seem, generally the criminal justice system moves a lot faster than the family justice system, due to guaranteed rights like trial within a reasonable time. Rather than fight a war on two fronts simultaneously, it’s going to be easier for your to mentally and financially deal with one battle at a time. Thus usually the best approach is to try to resolve criminal proceedings as soon as possible so that you can move on with family proceedings.

Very few criminal cases ever proceed to trial, thus you should assume resolution is possible. And even if your case is one of those to go to trial, since criminal trials are often set up to a year in advance because of court backlogs, the sooner you set that criminal trial date, the more breathing room you’ll have to deal with family proceedings while awaiting criminal trial.

4. Remain Silent in Family Proceedings if Necessary

While you’ve only got a right to remain silent in your criminal and not your family law proceedings, practically you don’t want to do yourself in on the criminal side by blabbing on the family side. Don’t admit to anything in family proceedings that might prejudice your criminal case.

If a CAS investigation is ongoing, explain to CAS that you can’t discuss the matters related to your ongoing criminal proceedings. Same with a custody and access assessment.

Now I know you might be thinking keeping custody of your children on the family proceedings side is far more important than potentially risking a little jail on the criminal proceedings side, plus you’ve done nothing wrong so you don’t have anything to worry about on the criminal side anyway. However, you need to attempt to avoid giving any evidence in the family proceeding so as to preserve your criminal trial right to remain silent, and not risk an attempt by someone to use any family court evidence against you in the criminal proceeding.

Practically speaking there is a balance here in giving evidence that you need to speak to your lawyer(s) about, since insisting on absolute silence in family proceedings in the face of multi-year criminal proceedings won’t be a tenable position. However, staying silent for a few months while criminal proceedings are expeditiously resolved could be more viable.

5. Focus Family Proceedings on Issues Avoiding Criminal Allegations

If family proceedings can’t be put off pending conclusion of criminal proceedings, try to avoid any talk of criminal proceeding events in family court and instead focus on (a) property division, (b) spousal support, and (c) child custody/access/support, in that order. While property division might initially be the lowest priority, it is also likely the safest issue to openly discuss as it is not dependent on conduct of the parties. While spousal support has some conduct implications that might require the parties to give evidence, it is less evidence heavy than issues involving children which can require a wall of facts to deal with.

6. Budget for Much More Money on the Family than Criminal Proceedings Side

In budgeting, generally your criminal proceedings are likely to cost far less in legal fees than your family proceedings, even if you take your criminal charge to trial, simply because criminal cases usually involve much less court and preparation time than family cases, which can get very document intensive, involve complex financial calculations, and have many substantive court appearances that stretch out over months and years: case conferences, settlement conferences, trial management conferences, motions, as well as trials.

It is possible if you take a complex criminal case to trial, but amicably settle your family case, that the family court proceedings could cost less than the criminal proceeding, but that will be a rare scenario.

Now you might be tempted to think you can only afford a lawyer for one legal battle, and are wondering if you should deploy the lawyer on the criminal or the family side? My suggestion is that such choices are impossible to make. Losing either could ruin your life. Better try to stage and sequence proceedings, meaning criminal first which should wrap up within 12 months (unless a very serious case) and family after.

The specifics on true costs? Many criminal charges can often be resolved for under $5,000 in legal fees. Many less complicated criminal trials can be run for $10,000 to $15,000 if they only involve a couple of days in court, plus preparation time.

By comparison, a full blown family law trial can top $100,000 in fees (and some can top $200,000 if there are motions and appeals). Rather than being measured by total days in court (start to end), family law proceedings can be measured by weeks in court, stretching out over many years. There are certainly ways to reduce the total expense, but even the most efficient family proceeding, where spouses agree on most of the issues, is still going to cost more than most criminal cases.

7. Plan for Much More Time on the Family Proceedings Side

I’ve seen family law cases regularly go for over 5 years. With criminal, you’re usually at the one to two year level at worst, and sometimes it will only be a few months if the matter can be resolved.

Again, there are ways to speed up family cases, but you can almost always bet on a simultaneous criminal case getting to the finish line first before the family proceeding.

8. Consider One Lawyer to Represent You in Family & Criminal Court

Consider hiring a lawyer that can deal with both your family and criminal proceedings. But be very careful in considering the potential for one versus two lawyers, as the main advantage will be that you’ll have a common point of contact, and there can be better coordination in presenting strong legal cases for you in both courts. This won’t necessarily save you money as the type of work required for each kind of case is quite different. And you don’t want to wind up with a lawyer who knows a whole lot about one type of law, but almost nothing about the other.

In my experience, there aren’t a lot of lawyers who do an equal amount of criminal law and family law, though a few of us do exist, perhaps because we started in one area of the law (in my case criminal law where I served for many years as a Federal Crown Prosecutor), prior to moving into the other area. Certainly some judges in Canada are expected to be equally knowledgeable about criminal and family law, if they are to try both kinds of cases, so balanced family and criminal knowledge is possible on the lawyer side. Just choose carefully.

Gordon S. Campbell equally practice both family law and criminal defence law throughout Ontario. He has appeared on family and criminal trials and appeals in the Ontario Court of Justice, Ontario Superior Court of Justice, Ontario Divisional Court, Court of Appeal for Ontario, and at the Supreme Court of Canada. Learn more at www.nofearfamilylaw.com and www.defenceeast.com.