Often the family conflict is so serious, the family disputes so frequent and so intense, that sometimes an incident could escalate to a point when the police intervenes and as a result one of the spouses is accused of domestic violence.
The most frequent and common criminal charges of domestic violence are the assault and the threats. Depending of the nature and the gravity of the facts, the prosecution can be by way of summary conviction or by way of indictment.
When the police intervenes, the persons involved are questioned by the police officers and on the basis of their depositions, the police officers usually arrest one of the spouses and bring that spouse to the police station. The arrested person can be questioned in the police station and it is important to remind that before being questioned the arrested person has the constitutional right to consult a lawyer and to remain silent.
From the police the person is usually released upon signing a promise to appear before the Court at a later date and upon the signing of an undertaking to keep the peace and to respect certain conditions. In more serious situations, especially when the arrested person has been previously arrested and convicted of acts of violence, that person can remain detained and brought before the Court for a bail hearing.
The most common conditions of release in family violence cases are:
- Not to communicate directly of indirectly with the presumed victim (in most cases the other spouse);
- Not to be in a certain parameter (for example a radius of a 100 meters) from the person of the presumed victim, of the place of residence, of the place of work or the place of studies of the presumed victim;
- There could be also other conditions depending of the situation, the main purpose of those conditions being to minimize the risk that a new incident of domestic violence occurs;
In such situations the separation of the couple is imposed by the events and if the couple has children, a solution has to be found as to the children's custody and the access rights. A problem can appear if the conditions imposed in the criminal case prevent the non-custodial parents of seeing his (her) children, therefore a request for access rights has to be made with the Superior Court, family division, and a request for modification of conditions has to be made with the Court before which the case of domestic violence is pending.
Me Robert Brankin has a rich and long experience in both family and criminal law and can represent the spouses involved in a domestic violence case in the family case, in the criminal case or in both cases, if he received the mandate.