Criminal charges and family court

Criminal Charges and Custody


I have blogged extensively about false allegations of domestic violence in my six part series. Often, allegations of domestic violence go hand in hand on the breakdown of the marriage. In this situation a father is seriously behind the eight ball.

Not only is he facing a criminal charge, restricted from going to his home and likely shopping for a criminal lawyer. He may, simultaneously get whacked with a family court application from his soon to be ex-partner.

Now he’s shopping around for a family lawyer as well.

If he is facing criminal charges of most concern is the Affidavit in Support of Claim for Custody and Access also referred to as a Form 35.1. This document is sworn evidence to be filed in family court to be used for the purposes of obtaining custody or access.

Of specific importance are paragraphs 6 and 7.

Paragraph 6 of the Affidavit in Support of Claim for Custody and Access

This paragraph states:

I have been found guilty of the following criminal offence(s) for which I have not received a pardon.

It then requests further details such as, the criminal charge, the date of the guilty plea and the sentence received.

Many men involved in a criminal proceeding related to allegations of domestic violence find themselves worn out. Particularly, since in my experience these men have never had any prior dealings with the criminal courts. They may, opt to accept an early guilty plea. To make the matter go away.

Paragraph 7 of the Affidavit in Support of Claim for Custody and Access

Paragraph 7 states:

I am now charged with the following criminal offence(s):

It then requests further details such as the criminal charge, the next court date, and any conditions. A common condition is the individual is barred from going near their home since that is usually where his partner resides.

If an individual is charged with an allegation of domestic violence and he has not received any outcome he must disclose it. While for the purposes of criminal law he is innocent until guilty. For family court he is not. An inference may be drawn for custody.

Don’t get me wrong, there are obvious, good reasons for concern. After all a court doesn’t know anything about you. Disclosure according to these paragraphs is sort of based on the honor system. In that, one does not produce their criminal court proceeding documents unless ordered to do so. A court, doesn't know if you are a violent thug.

However, both these paragraphs are very concerning. If a family law litigant positions herself strategically she may on immediately having her husband charged, also hit him with family court proceedings. Thus, forcing him to disclose as per Paragraph 7 whether he is charged.

Now, if you were the judge and two parties are contesting child custody in front of you and one of them has the children residing with her already and has no history of criminal proceedings, whereas the other does not have the children and does have a criminal record who would you side with?


Are you looking for a family law lawyer in Burlington or Oakville? Call my office.


My address is 901 Guelph Line, Burlington.
You can also call or text at 416-505-4901 OR call Toll Free: 1 (800) 939-9211

Rehan Khalil
call or sms me (416) 505-4901
anytime for a free consultation