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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 07-31-2011, 12:40 AM
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Default Uttering threats allegations and its impact on Family Court.

OK so as some of you have probably pieced together, I'm facing a criminal chrge from my ex's husband - as well as fighting certain aspects of a 'motion to change' in family court as well.

Now I'll be perfectly honest and admit that for the incident in question we spoke and I made an innapropriate remark. However, I certainly did not threaten anyone.

I'v been offered a settlement of no permenant record with a continuation of the conditions set out by my 'undertaking to a peace officer' when I was arrested. So it's either that or goto trial. Lawyer advises me that the only differnece likely between accepting the offer and being found guilty at trial is virtually the same, except to be found guilty would mean to have a criminal record.

On principal alone, and at further expense to myself - I am going to trial.

Now I've spoken this matter over with flic lawyers and criminal lawyers and they say that these sort of allegations are very common in family court, and that it will likely not be too much of a factor for family court results.

Yet, I am facing the possability of being convicted of a criminal offence and cannot imagine how this would not be a very significant factor should my worst fears be realized.

Anyone care to comment?
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Old 07-31-2011, 01:09 AM
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That totally sucks.

My understanding is that the results of one trial are not allowed as evidence at another. However I'm not a lawyer blah blah.

You might notice that even in criminal trials reported in the press, if an accused has an existing record for theft, murder, assault, etc, these aren't allowed to be brought up at trial. Much to the complaint of news columnists sometimes. An accused is tried based on the evidence of the particular incident.

My understanding is that at a family court trial the criminal charges may not be brought up. However you should check this with an attorney, I'm just some guy on the internet.
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Old 07-31-2011, 02:38 AM
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Researching Canlii, and I am doing my homework everday, I haven't read judges giving any significant weight to prior criminal record of the parties UNLESS the incident/charge/conviction affected your parenting abilities and/or children's well being. I guess an example would be - the children were present, heard the threats and they now need counselling or are affraid of you. Judges are focused on one thing only - THE WELFARE OF THE CHILDREN. The way I see it, they don't care if your using methamphetamine as long as it's not in front of the kids and you properly care for them

But there's a flip side to that coin. Because it was directed to your ex's husband the family judge might look at it differently then if you knocked some guy out in a bar, ya know what I mean. So be careful how you thread.

They certainly CANNOT use any allegation/charge that you haven't been proven guilty of. That's against the law. Your ex or her lawyer might try to use it, but then your money sucking lawyer has to - you know what - OBJECT!
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Old 07-31-2011, 02:42 AM
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Quote:
Originally Posted by Mess View Post
if an accused has an existing record for theft, murder, assault, etc, these aren't allowed to be brought up at trial.
but are allowed at sentencing
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Old 07-31-2011, 09:53 AM
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Default They can use the testimony from the criminal trial

My Ex, (female) was charged with assault against me (2 X in 2010) and I had to appear as a witness.

Here is, word for word, what i paid my lawyer to tell me...

-
It is true that your testimony in criminal court will impact your family court case, but it can impact your Ex's family court case as well, both positively and negatively. For example, her lengthy testimony can be used as material to impeach her if she makes subsequent inconsistent statements in the family proceeding. Both you and your Ex need to walk on eggshells as a result of the criminal matter.- your Ex's family lawyer will of course want to append parts of the criminal transcript to future family court pleadings. In response, I will be strenuously opposing that any weight be given to the criminal transcript in family court, due to the factors you outline below. Judges do not simply accept evidence as given to them; each piece of evidence has to be weighed for credibility and reliability, and context is important. You will have a chance to address any misuse of the criminal transcript. However, to be frank, it will take effort to dispel negative first impressions IF the transcript is not favourable to you.

So, although I am not a lawyer, the above should shed some light from the legal end.
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Old 07-31-2011, 11:15 AM
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Quote:
Originally Posted by Skndlz2904 View Post
but are allowed at sentencing
True but you don't get sentenced in a family court, although I'm sure sometimes it feels that way. My understanding is that there is a fundamental legal principal here that trials are separate.
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Old 07-31-2011, 11:30 AM
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Yes no doubt separate trials, separate though seemingly unrelated courts. My issue is that I was there as a witness to an assault on me with a peace bond in place. The defense attorney, decided it would be a great strategy to try to prove my Ex was abused for years and that I set up the assault so she would be arrested and I would have the kids and the house, so they dragged the last 25 years of the relationship into court.

The Crown questioned me based on the assault and had little info on the relationship, therefore unable to ask arms length question of me or her. My 12 year old daughter and I, on the other hand, were thoroughly grilled by the defense, of course aimed at making me look bad. On several occasions I was warned by the judge to stop badgering the attorney and at one point compared his height and his intelligence to my daughter. He was trying to show and did successful that I can get angry; such as asking for a specific number of occasions an event happened which cannot be accurately quantified over 25 years. I kept answering I don't know on one question, 9X refusing to guess.

The point is, transcripts from this case which are one sided, can and will be used in family court. Just another display of a fair court system.
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Old 07-31-2011, 02:21 PM
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My current husband was charged with criminal harassment after taping phone calls to find out definitively if his wife (now ex) was having an affair.

He took the kids to an event, came home to find her in bed with the bf. She grabbed the kids, refused to leave the house and called police saying she was afraid for her life. Angry words were exchanged but no death threats. He plead guilty in exchange for a conditional discharge.

Five years later, we are in family court suing for custody and this issue continues to be a problem..because it involves the family, not a stranger. Our lawyer told us that the judge will take this conviction into consideration, that it directly affects my husband's credibility. This is crap-- we are very open and honest people and the other party lies through her teeth.

I wish every time this comes up that my husband had fought these charges at the time. He felt that he would not have a criminal record if it was discharged--but it still counts as a conviction. Now is the time to "waste money on lawyers". Besides, who says the judge may not order a conditional discharge even if you are found guilty?
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Old 08-15-2011, 01:16 PM
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Wretched.... fight it tooth and nail...

I am going through exactly the same scenario as you, having had the same bs allegation made against me, in the middle of a legal battle with my ex who is pulling out all stops to try to prevent me from spending time with our children.

I am fighting the criminal charge self-rep, and am 100% confident of being acquitted. My trial started already, but ran short of time by about 2 hours from finishing, and we don't come back again for 4 1/2 months to finish.... arggggh.

Whether or not you are convicted should make no difference in your custody issues. That is, IF we lived in a perfect world, and IF cases were truly decided upon fact instead of perception. In case you haven't figured that one out.... too many if's in my last statement. You need to try to have either the charges dropped or an acquittal, to be safe.

Once you have the acquittal, hopefully you can use that to build upon, showing your ex's unfounded allegations, and your persistence and resolve to continue on to fight for the best interests of your kids. Turn the negative into a positive, it's the only way to effectively deal with the false allegations.

To date, I have dealt with 8 police investigations and 3 cas investigations. Keep your cool, keep positive, and keep fighting! A good parent looking out for the best interests of their kids would not make false allegations, and would try to resolve differences through the proper channels before making the kids go through police involvement or cas or what have you... Keep that in mind as the allegations fly, and try to organize your defenses along those lines.

Good luck. Be strong. Be patient.
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Old 08-15-2011, 01:41 PM
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Thank you Wretched, if more of us stop bending over and taking the peace bond offer or anything less than acquitted then we will clog the system and force them to make changes. These false allegations must stop and you are doing your part to help us all out. If there is anything I can to to help please let me know.
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