What can be done when bail conditions conflict with family law orders?

When someone is charged with a criminal offence, they are generally kept in custody until a bail hearing can be held. At this hearing, the court will determine whether the accused can be released, usually with a number of conditions on his behaviour, or held in jail until his trial.

What are bail conditions?

The purpose of bail conditions is to ensure public safety, the safety of a victim or witness, and to make sure that the accused will appear before the court at the appointed date and time.

Bail conditions can:

  • prohibit communication directly or indirectly with the victim, witness, or any other person expressly named in the order;
  • prohibit going to any place within 200, 500 or 1000 meters of any specified places, such as the victim’s residence and place of employment;
  • prohibit or limit the possession of any weapons or ammunition;
  • specify any other conditions necessary to meet the specific and unique needs of the victim as well as the accused (e.g. restricting substance use, associations, curfew, relocation, driving a motor vehicle, etc.); and/or
  • allow or restrict access to the children.

In virtually all cases of violence against women within the family, the accused will be prohibited from communicating or having any other contact with the victim (his partner). If the children have witnessed or been directly involved in the events that led to the charge, the no contact provisions may apply to them as well.

Breach of bail conditions can result in:

  • jail
  • new charges
  • withdrawal of pre-trial release

What happens when bail conditions and custody/access arrangements conflict or appear to conflict?

It is not uncommon for the wording in bail conditions and custody/access orders or agreements to conflict. Bail conditions are focused on ensuring the accused does not flee or engage in behaviours that could intimidate the victim and/or witnesses from testifying fully at trial. A custody and access order or agreement is focused on ensuring that the children’s best interests are met with respect to the time they spend with each of their parents.

Sometimes bail conditions specify that there is to be no contact by the accused with the victim (his former partner) and/or the children except as may be ordered by a family court. Where a custody and access order is already in place that permits the accused to pick the children up from their mother, he is permitted to continue to do this, even though he is otherwise prohibited from having contact with her.

Should the mother feel it is not safe for her abuser to have direct contact with her or the children, she needs to return to family court to seek an amendment to the existing order.

What if there is no custody and access order in place when bail is being decided?

Sometimes the criminal proceeding begins while the family is still living together, in which case there is no custody and access. The accused will likely attempt to have the no-contact provisions of his bail order permit him to have some kind of contact with his children, possibly through exchanges that involve their mother. If he is successful, the bail conditions could prohibit contact with his former partner and/or the children except for “access as arranged through a third party.”

Women often interpret this to mean that they are required to permit access through a third party, particularly if the accused or members of his family put pressure on her. This is not what this phrase means. The phrase means that if access is to happen it is to be arranged through a third party (for example, family members) and not between the accused and the victim directly.

In this instance, it is a good idea for the woman to consider starting an application for custody and access and possibly for a restraining order as well as soon as possible.

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