Family Breakdown & Criminal Law

Law

People who are separating or divorcing may also be involved with the criminal justice system. See the sections below to learn more about:

  • The difference between criminal law and civil law
  • Family violence and criminal charges
  • A summary of protective orders available in Alberta
  • What you are allowed to do when a protective order is in place
  • What happens if you don’t follow a court order (called “breaching” a court order)
  • Dealing with family law issues when one party is in jail (including what you can do if you are incarcerated)

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: February 2016
Who is this Information Page for?

This Information Page contains information about how involvement with the criminal justice system can affect family breakdown matters.

The term “criminal” refers to matters listed as “crimes” in the Criminal Code of Canada. The Criminal Code is a federal law that lists and describes most crimes and criminal procedures in Canada. For example: assault or fraud are both crimes listed in the Criminal Code, so anyone charged with assault or fraud would be involved in “criminal proceedings.”

This Information Page also includes information about relationship breakdown when one or both partners or spouses are involved in quasi-criminal proceedings. A quasi-criminal proceeding is a legal process that gives a court the right to punish someone for his or her actions even if those actions are not listed as a crime in the Criminal Code. For example: a person who has an Emergency Protection Order or restraining order brought against him or her would be involved in a quasi-criminal proceeding.

Tip

Be sure to read the “What the words mean” section below for more detailed information about the terms we will use on this Information Page.

Although all of the general family law legal rules and processes still apply in these cases, criminal and quasi-criminal issues may affect what happens when, whether and when to involve a lawyer, what gets included in an order or agreement, and appearing in court.

You are currently on the Law tab of this Information Page, which has information on what the law says about relationship breakdown in Canada when one or both of the partners are involved in the criminal justice system. For information on the process you may need (or want) to follow, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

Be Aware

This is a very complex area: consider consulting a criminal law lawyer and a family law lawyer. For more information, see the Working with a Lawyer Information Page.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

Criminal Code of Canada

A federal law that lists and describes most crimes and criminal procedures in Canada. Some other crimes are listed in other federal laws (such as the Controlled Drugs and Substances Act), but most crimes are included in the Criminal Code.

For more information about the Criminal Code of Canada, see the following resources.

Web Criminal Code – General FAQs
Centre for Public Legal Education Alberta
English

Web Criminal Code
The Canadian Encyclopedia
English

federal law

Laws that are made by the Government of Canada and apply to all Canadians, no matter which province they live in. Examples include: the Income Tax Act, the Criminal Code of Canada, and the Immigration Act.

provincial law

Laws that are made by a provincial or territorial government. In Alberta, provincial laws are made by the Government of Alberta and apply only in Alberta. Examples include: the Alberta Adult Interdependent Relationship Act, the Alberta Family Law Act, and the Alberta Wills and Succession Act.

criminal law

The system of law that involves punishing people who do things that harm people or property, or threaten to harm people or property. Property includes pets.

civil law

The law that involves disputes between individuals, such as family law and personal injury law. Civil law can also include “quasi-criminal” matters—see “quasi-criminal proceeding” below for more information.

criminal proceeding

A court process that deals with matters listed as “crimes” in the Criminal Code of Canada. For example: assault or fraud are both crimes listed in the Criminal Code, so anyone charged with assault or fraud would be involved in “criminal proceedings.”

quasi-criminal proceeding

A legal process that gives a court the right to punish someone for his or her actions even if those actions are not listed as a crime in the Criminal Code. For example: a person who has an Emergency Protection Order or restraining order brought against him or her would be involved in a quasi-criminal proceeding.

civil proceeding

A court process that deals with matters in civil law. It does not deal with matters under criminal law, but it may deal with matters that are quasi-criminal.

Crown prosecutor (also called “Crown counsel” or “the Crown”)

In Canadian criminal law, this term is used to describe lawyers who represent the government in the legal action against a person who is accused of a crime. You may have heard the term “district attorney” used to describe such lawyers—this is an American term and does not apply in Canada.

family violence (also called “domestic violence" or “domestic abuse”)

Abuse of power by one person (the “abuser”) toward one or more other people that the abuser has a relationship with. It is a pattern of behaviours within a relationship of intimacy, dependency, and/or trust.

It is most common to think of family abuse happening in romantic relationships (such as dating, living together, and marriage). However, abuse can also occur in other relationships, such as those between parents and children, adult children and their parents (seniors), siblings, extended families, or people and their pets.

abuser

A person who uses their power in a relationship to control and/or harm a person with whom he or she has a relationship. The abuse can be physical, sexual, emotional, or financial. Abusers can be anyone, whether a friend, parent, romantic partner, adult child, or caregiver.

victim

The person who is controlled and/or hurt by someone else (the “abuser”). Victims can be anyone who is in a relationship with the abuser, such as a child, an elder, or a romantic partner. Victims may also be called “survivors.”

claimant

A person who brings a “claim” against another person. A claim is a particular kind of court application. The claimant is one of the “parties” in the court application.

In situations of family violence, the claimant is the person who says that family violence has occurred and asks for some sort of protective order. This person does not have to be the victim of the family violence—he or she may be acting on behalf of the victim.

respondent

The person who has a court application brought against him or her. The respondent is one of the “parties” in a court application.

In situations of family violence, the “respondent” is the person who is accused of being abusive, and a “claimant” has asked a court for protection from the respondent.

the accused

A person who has had a criminal charge brought against him or her (but the charge has not yet been proven). In criminal cases, the terms “accused” and “respondent” can be used to describe the same person.

protective order

A court order to protect a victim of violence, abuse, or harassment. Protective orders can be part of the criminal law or the civil law.

The protective orders available in Alberta include:

  • Emergency Protection Orders under Alberta’s Protection Against Family Violence Act;
  • Queen’s Bench Protection Orders under Alberta’s Protection Against Family Violence Act;
  • Emergency Protection Orders under the Family Homes on Reserves and Matrimonial Interests or Rights Act;
  • restraining orders;
  • peace bonds;
  • bail conditions; and
  • no contact orders.

For more information about these, see the Protective Orders Information Page.

restitution

A court-ordered payment from a person who caused damages to someone to the person who was harmed. For example, in family violence situations, the abuser may be ordered to pay restitution to the victim.

This payment is meant to make up for financial losses. For example:

  • property damage or loss;
  • physical or emotional harm that led to financial loss; or
  • expenses from having to move out.

Restitution is only ordered if the person who caused the damage is found guilty of a crime. The victim can apply for restitution, and if the judge agrees, it can be included as part of the offender’s sentence.

breach

The act of not following a court order (whether on purpose or by accident). Depending on the order, there are different consequences for breaching a court order.

contempt of court

Any action that involves:

  • purposely not following a court order;
  • behaving badly in court in a way that disrupts the court’s proceedings; or
  • behaving badly in court by disrespecting the judge or others in the courtroom.

If this happens, a judge may give an order that “finds” or “holds” a person “in contempt of court.” If someone is found in contempt of court, he or she may be fined, imprisoned, or both.

enforcement

Forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order.

spouse

A person who is legally married to another person.

partner

A person who is in a domestic relationship with another person. This term refers to people in romantic relationships, both heterosexual and homosexual, as well as people in non-romantic domestic relationships.

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

“best interests of the child”

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.
The laws that may apply to you

As you work through your separation issues, you may wish to read the laws (also called “statutes” or “acts”) that apply. The laws included on this Information Page are:

Web Family Law Act (and associated Regulations)
Government of Alberta
English

Web Divorce Act (and associated Regulations)
Government of Canada
English



Web Criminal Code
Government of Canada
English

When reading laws, you also need to know about the “regulations” associated with those laws. The links above take you to a page that lists the laws themselves as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If you plan on representing yourself in court, you will also need to know about “case law.” In general, “case law” refers to the idea that it is up to judges hearing individual cases to decide:

  1. the exact meaning of the words in the laws (called “interpretation”), and
  2. how that meaning applies to the people in those cases (called “application”).  

This means that what happens in other cases can affect what happens in your case. It also means that there are cases decided before that govern how cases are decided now. For more information on case law, see the Our Legal System Information Page and  the Educating Yourself: Legal Research Information Page.

The differences between criminal and non-criminal processes

Criminal matters and non-criminal matters are treated very differently under the law. When dealing with your matters, it is important to understand the differences.

The role of the Court

In criminal matters, the role of the Court is to hold people responsible for their actions that put the public at risk. To do so, the Court decides whether the accused person is “guilty” or “not guilty.”

In non-criminal matters, such as family law, the Court does not look at issues of guilt and innocence. Instead, the decisions of the Court are generally meant to help the parties move forward, and to reflect the best interests of the children (if there are any).

The parties involved

In criminal matters, the parties are “the accused” (who can have a lawyer) and “the Crown.” The Crown prosecutor is the lawyer for society—not the lawyer for the victim. He or she makes the decisions about how to proceed with the case on behalf of the government. Even if the victim is also the partner/spouse or family member of the accused, the victim is not one of the parties. In other words, the victim does not make decisions about how to proceed—at most, the victim is a witness for the Crown.

In non-criminal matters, such as family law, the parties are the people who start the legal action and the people who respond to the legal action (in other words, the people suing, and those being sued). Each party may also have a lawyer. The parties are the ones making the decisions about how they want the case to proceed.

The burden of proof (also called the “standard of proof”)

In criminal matters, in order for the Court to find the accused guilty, the Crown must prove “beyond a reasonable doubt” that the accused committed the crime in question. In other words, there could be no reasonable doubt in the mind of a reasonable person that the accused did what he or she is accused of—the facts are such that there is no other reasonable explanation. The judge (or the jury) must be almost completely certain that the accused person is guilty. This is generally true in quasi-criminal matters as well.

In non-criminal matters, such as family law, the burden of proof first lies with the plaintiff (or applicant) and then with the defendant (or respondent) to counter the evidence given by the plaintiff/applicant. The Court then makes its decisions based on whose evidence it feels is more believable (or “more probable than not”)—this is called “on a balance of probabilities.”

This difference in the burden of proof can be confusing when people are dealing with criminal issues at the same time as their family law issues. People sometimes think that a “not guilty” finding in criminal court will apply in family court. This is not necessarily the case. For example: an accused person may be found “not guilty” of assault in criminal court. The accused person may then think that family court will also assume that the assault did not happen. However, even though the burden of “beyond a reasonable doubt” was not met in criminal court, that does not mean that the burden of “on a balance of probabilities” will not be met. As a result, the family court may make decisions about family law matters (such as custody and access) based on a finding that an assault did occur.

The outcomes

In criminal matters, if the accused is found guilty, there can be penalties (such as fines) or punishment (such as time in jail). Quasi-criminal matters can also have penalties and punishment.

In non-criminal matters, such as family law, there is no “punishment” (although one or both parties may feel like they “lost” or were treated unfairly). Instead, the focus is on the best interests of the children (if there are any), and how best to move the family forward.

More information

For more information on the differences between criminal law and civil law, see the following resources.

Web Introduction to Canadian Law
Centre for Public Legal Education Alberta
English

Web Understanding the Criminal Trial Process
Centre for Public Legal Education Alberta
English

PDF Criminal Law in Alberta: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English

Web Arrest, Booking, and Bail Procedures
Centre for Public Legal Education Alberta
English

Web The Law of Arrest
Centre for Public Legal Education Alberta
English

Web Your Rights under the Charter
Centre for Public Legal Education Alberta
English
Start at “Detention and Imprisonment.”
Civil matters and criminal matters: Separate legal processes

Your criminal law matters and family law matters (which are part of civil law) are separate issues. This is something that many people are surprised by, and it can often be confusing and frustrating for the people involved.

PDF Families and the Law: Representing Yourself in Family Court
Centre for Public Legal Education Alberta
English
See p. 9.

Web A step-by-step guide to a criminal case
McElroy Law
English
This is a private source. Learn more here.

Separate proceedings

Many people think that all legal matters, no matter what kind, can all be “dealt with” at the same time (for example: in the same court hearing or out-of-court process). This is not the case. They will not be dealt with at the same time.

In other words, criminal court will not deal with issues around separation, divorce, or its related topics (such as parenting time, child support, or partner support), and family court will not deal with matters such as criminal charges and bail.

Giving evidence more than once

Many people think that evidence that is given in criminal court will automatically be shared with the family court. This is not the case. The opposite is also true: evidence from family court will not automatically be included as evidence in criminal processes.

As a result, if a spouse/partner is also the victim in a criminal matter, she or he will have to give the same evidence again in the second proceeding. This means giving similar written evidence (such as affidavits) and possibly even testifying in each proceeding.

The possibility of conflicting outcomes

Because the court proceedings are completely separate, the Courts do not know what is going on in the other proceeding, and they may not consider important facts and details, such as scheduling hearings and how the Orders in one proceeding might affect the Orders in the other proceeding.

For example:

  • A family court may have given an order that allows one party to have contact with a child.
  • A criminal court may then order that that party cannot have contact with the child.
  • Now there are conflicting orders.
  • The parties would have to go back to family court to change the Order to reflect the new situation ordered by the criminal court.
Civil matters and quasi-criminal matters: Not always separate legal processes

Although criminal matters and family matters are always separate processes, quasi-criminal issues can sometimes be dealt with at the same time as family issues. For example: restraining orders can be dealt with in the same hearing as child support or other family topics.

However, quasi-criminal issues do not have to be dealt with at the same time as family issues. For example: the Maintenance Enforcement Program (MEP) has powers to fine and punish people who do not pay the child support and/or partner support that they are supposed to pay. However, MEP cannot deal with any other family-related issues.

Civil and criminal proceedings: How they affect each other

Although your matters may be dealt with in separate legal processes, the legal processes can affect each other.

Information, evidence, and behaviour in one court can affect what happens in the other court

Although criminal law and civil law (including family law) have separate legal processes, and the evidence from one is not automatically included in the other, it is very important to understand that the evidence, information, and behaviour from one court proceeding can be used in another court proceeding. For example: if you are criminally charged with failing to provide the “necessaries of life” for your child, that same evidence can be used in the family court hearing about parenting time.

Possible delays (but don’t count on it)

Separate family and criminal processes can be scheduled and heard despite what is happening in the other proceeding, but family judges can be sympathetic to people dealing with criminal matters. As result, if the accused asks to delay a family hearing (this is called an “adjournment”) in order to deal with his or her criminal matter first, the judge might grant the adjournment.

However, judges do not have to delay family proceedings due to criminal issues. Also, if the other party does not agree to the delay, there has to be a very good reason for the judge to grant the delay. Judges are less likely to grant the delay if it harms the other party or the children in some way, or if the judge thinks that the accused is taking advantage of the situation.

Police enforcement of family court orders

“Enforcement” means forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order. Many people think that family court orders can always be enforced by police.

For example:

  • Alex and Terry have a custody and access order for their baby.
  • In that Order, Terry can see the baby every second weekend.
  • If Alex does not let Terry have the baby one weekend, can the police make Alex hand over the baby?
  • If Terry does not return the baby at the end of the weekend, can the police make Terry hand over the baby?

Many people think that, in these kinds of situations, the police will simply force Alex and Terry to do as the Order says. Many people even think that the police can go into the parents’ home and simply take the baby to do what the Order says. This is not the case.

In order to be able to enforce a family court order in this way, the court Order must have something called an “enforcement clause.” An enforcement clause is a part of the court order that allows police to force a person to follow the court order.

Without an enforcement clause, the police cannot force a person to follow a family court order.

However, enforcement clauses are not included in court orders automatically—if you want one, you must specifically ask for one. In addition, judges do not include an enforcement clause just because it was asked for. The person asking for the clause must show that there is a real concern that the order will not be followed (this is called a “breach”), or that breaches have occurred in the past.

For more information about police enforcement clauses, see the following resources.

PDF Families and the Law: Child Custody and Parenting
Centre for Public Legal Education Alberta
English
Start on p. 18.

Video Child Custody and Parenting
Edmonton Community Legal Centre
English
Start at 24:50.

PDF Access Enforcement Information Sheet
Government of Alberta
English

Audio/Web How to Enforce a Parenting or Contact Order
Calgary Legal Guidance
English

Video Family Law Access
AdviceScene (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here. Start at 21:00.


Web Police Enforcement of Custody and Access Orders
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.

If someone breaches a family court order, there can be long-term consequences. Judges do not view such behaviour very well, and it may affect future orders. In addition, the person who breached the Order may be found in “contempt of court.” This can lead to fines and/or time in jail.

For more information about following court orders and contempt of court, see the following resources. Note that these resources are from a private source outside Alberta, but the same concepts apply in Alberta too.

Web What is “Contempt of Court” in Family Law, Anyway? – Part I
Russell Alexander, Collaborative Family Lawyers
English

Web What is “Contempt of Court” in Family Law? — Part II
Russell Alexander, Collaborative Family Lawyers
English

Web Who has to Prove Contempt of Court? – Part III
Russell Alexander, Collaborative Family Lawyers
English

Web Can a Parent be in Contempt When Kid Disobeys a Court Order?
Russell Alexander, Collaborative Family Lawyers
English

For more information about other options to help enforce family court orders when there are problems (for example: supervised access, orders for the reimbursement of costs, and the Maintenance Enforcement Program for support orders) see the following Information Pages.

Family violence (also called “abuse”)

Family violence is abuse of power by one person (the “abuser”) toward one or more other people that the abuser has a relationship with. It is a pattern of behaviours within a relationship of intimacy, dependency, and/or trust.

It is most common to think of family abuse happening in romantic relationships (such as dating, living together, and marriage). However, abuse can also occur in other relationships, such as those between parents and children, adult children and their parents (seniors), siblings, extended families, or people and their pets.

For more general information about family violence, see the following Information Pages.

It can lead to criminal charges

Some people think that abuse that takes place in someone’s home is their own private matter.

This is not true. In Canada, there are criminal laws against abuse. “Criminal law” is the system of law that involves punishing people who do things that harm (or threaten to harm) the safety of the public (whether it is one person’s safety or the safety of many people). For example, the Criminal Code of Canada protects against certain types of abuse such as assault, sexual assault, criminal harassment (stalking), and uttering threats. There are also some “civil law” remedies that can help a person who has been abused. A civil remedy is often in the form of money, which is paid to the victim.

For more information about the kinds of criminal charges that can result from family violence, see the following resources.

Web It's Not Allowed
Centre for Public Legal Education Alberta
English

PDF It Starts Today
Today Family Violence Help Centre
English
See “What Is Against the Law?”

Web The Criminal Complaint Process
Centre for Public Legal Education Alberta
English

Web Keeping the Abuser Away
Centre for Public Legal Education Alberta
English
See “Protective Orders under Provincial Laws.”



Web Legal Proceedings to prevent further Family Violence
Calgary Legal Guidance
English

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more here. Choose your language, then see topic #4.

Web Family Violence Laws
canadianlawsite.ca
English

PDF A Self-Help Guide for victims of Domestic Violence
United Cultures of Canada Association
English

Web The Criminal Justice System - Basic Legal Information for Women Experiencing Violence
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Family violence and immigration considerations

Family violence can also happen to people who are:

  • not Canadian citizens;
  • temporary foreign workers; or
  • in the process of immigrating to Canada.

For example: a person can be abused by their sponsor for immigration. Or, the sponsor can be abused by the person they are sponsoring. Criminal charges that result from the abuse can affect immigration issues such as sponsorship.

Suffering from domestic violence if you are new to Canada raises many complicated issues. For example, many immigrant victims might have a language barrier, which makes asking for help more difficult. Some immigrant victims might also think that violence is normal and allowed in Canada.

For more information about family violence in the immigrant community, see the following resources. Some of these resources still mention the old rules about “conditional” permanent residency. That information no longer applies.

Web Rose's Story
Centre for Public Legal Education Alberta
English

Web Tools to Help (Immigrant women)
Centre for Public Legal Education Alberta
English



Web A Spotlight on Family Violence and Immigrant Women in Canada
Centre for Public Legal Education Alberta
English

Webinar Immigration Status and Relationship Breakdown: What Women Should Know
Your Legal Rights
English
This resource is from outside Alberta. Learn more here.

Web Fostering healthy families
Islamic Family and Social Services Association
English


Audio Family Violence Information Line: 170 Languages
Government of Alberta
English

For more detailed information on family violence and immigration, see the “IRCC options when there is family violence” section of the Family Breakdown & the Immigration Process Information Page.

If you think you might be abusive

Sometimes you might be abusive and not even know it. Sometimes you might know you are abusive, want to change, but you aren’t sure how to stop it or where you can get help. It is important to know that violence is wrong and nobody deserves to be abused.

For information on what to do if you think you might be abusive, see the If You Think You Might be Abusive: Learning to Stop the Cycle of Abuse Information Page.

Protective orders

In family law cases, there are different kinds of protective orders that can protect victims of abuse. Some protective orders are criminal, some are quasi-criminal, and some are civil. Such orders can greatly affect the family law process and how family law matters are resolved.

Kinds of protective orders

Emergency Protection Order (EPO) under the Protection Against Family Violence Act

An Emergency Protection Order (EPO) is a civil court order (given under the Alberta Protection Against Family Violence Act) that gives a victim of family violence immediate protection for up to 9 working days. An EPO can order the abuser to leave the family home, to not communicate in any way with the victim or the victim’s family, and to stay away from other specific places (such as the victim’s workplace). An EPO can also give the police the authority to take any weapons used by the abuser to threaten or commit family violence. After 9 working days, there will be a review hearing to determine next steps.

For more information, see the Protective Orders Information Page.

Queen’s Bench Protection Order (QBPO)

A Queen’s Bench Protection Order (QBPO) is a civil court order that provides long-term protection for a victim of family violence. Unlike an Emergency Protection Order, it is not meant for immediate protection. A QBPO can order the abuser to leave the family home, to not communicate in any way with the victim or the victim’s family, and to stay away from other specific places (such as the victim’s workplace). A QBPO can also give the police the authority to take any weapons used by the abuser to threaten or commit family violence. The abuser may also be ordered to pay the victim for financial losses caused by the abuse, to attend counselling, and/or to allow the victim to use certain family property.

For more information, see the Protective Orders Information Page.

Emergency Protection Order (EPO) under the Family Homes on Reserves and Matrimonial Interests or Rights Act

If you live on-reserve (whether you are Aboriginal or not), there is a different Emergency Protection Order available under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) that can protect you in the on-reserve family home. On this website, this kind of order is referred to as a “FHRMIRA EPO” and an Emergency Protection Order under the Alberta Protection Against Family Violence Act is referred to as “PAFVA EPO.”

For more information, see the Protective Orders Information Page and the Family Breakdown if You Live on Reserve Information Page.

Restraining order

A restraining order is a civil court order that protects a victim of violence by keeping the abuser away from the victim. Restraining orders can be made against family members as well as non-family members (such as a neighbour): the claimant can make an application against anyone who has made him or her feel unsafe. This could include actions (such as violent behaviour) or words (such as threats). The terms of a restraining order can be very specific to each person’s situation.

For more information, see the Protective Orders Information Page.

Peace bond

A peace bond is a criminal court order that requires a person to “keep the peace”—in other words, the person named on the peace bond must not get into any trouble or be charged with any crimes for a specific time period. The Court may add many terms to a peace bond to protect a victim of abuse, such as ordering that the abuser stay away from specific places (such as the victim’s workplace), ordering that the abuser have no contact with the victim in any way, and taking any firearms away from the abuser.

For more information, see the Protective Orders Information Page.

No contact order

A no contact order is generally not quite as broad as a peace bond. A no contact order results from a criminal proceeding and states that one person cannot have any communication or contact with another named person. This order may be brought against:

  • someone who has only been accused of a crime (but not yet convicted); or
  • someone who has been convicted of a crime (also called an “offender”).

For example:

  • If the accused person has been arrested and is released until his or her court appearance, the police can order him or her not to go near someone or communicate with that person. In such a case, the no contact order will only be in place until the case against the accused is heard in court.
  • A no contact order can also be ordered if the accused is convicted, as part of a final sentence for a criminal offence.

For more information, see the Protective Orders Information Page.

Bail conditions

The term “bail” refers to an accused person being released from jail until their criminal court date. In Canada, the accused will usually be released unless:

  • the Court thinks that they may not attend their criminal court hearing; or
  • keeping the accused person in jail is necessary to protect the public.

However, the Court often adds “conditions” to bail. These conditions can include:

  • reporting to authorities (for example, the police or a probation officer),
  • staying in the province,
  • staying away from a specific person or place, and
  • no contact orders.

For more information, see the following resource and the Protective Orders Information Page.

Web Bail: Questions
Community Legal Education Ontario
English

Warrants permitting entry

A warrant permitting entry is a way for concerned family members or loved ones to check in on someone they believe might be a victim of family violence. It is a part of the civil law, permitted by the Alberta Protection Against Family Violence Act.

To get a warrant permitting entry, a worried loved one can contact the police to tell them about the situation and their concerns. If the police think that there is a good reason (called “reasonable and probable grounds”) to believe that the victim is being kept from contacting the person who informed the police, or is the victim of family violence, the police can ask the Court for a warrant permitting entry.

If a warrant permitting entry is ordered, a police officer is given permission by the court to enter a specific location to search for and help a victim. The police officer can then remove the victim from the location if the victim gives his or her permission.

For more information, see the Protective Orders Information Page.

Be Aware

With a warrant permitting entry, the police can enter a home without getting a warrant under criminal law (which is normally required to enter someone’s home without their permission). Because the warrant permitting entry is granted under civil law, the “burden of proof” is less than it would be for a regular warrant under criminal law. For more information about the different burdens of proof, see the “The differences between criminal and non-criminal processes” section above.

Getting your belongings when you are the one being kept away

As part of a protective order, you may be told to leave the home you were living in. If that happens, you may not have some personal items that you need. You are not allowed to go to the home to get your things.

Instead, you can make arrangements to have them brought to you by someone else (with the permission of the person living in the home). Or, in many parts of the province, the local police may be able to escort you back to the home to get your belongings. You can ask your local police if this is possible in your area.

You need to know the exact restrictions of your protective order

If a court order is not followed, this is called “breaching” a court order.

The accused/respondent

If you have a protective order made against you, you need to know exactly what you are not allowed to do. Be sure to read the Order carefully. There can be very serious consequences for breaching a protective order.

The victim/complainant

Victims must also follow the terms of the protective order. If you breach the Order, it could cause problems if you ever need a protective order again in the future. Instead, you can go back to court to have the Order removed.

Also, if the protection is given by bail conditions, it is important to know the exact conditions (also called the “terms of release”). Bail conditions almost always say that an accused person must stay away from his or her victim.

Often the bail conditions can include other things. For example, the accused may:

  • not be allowed to own or have firearms;
  • have to live in a certain place;
  • have to be home by a certain time every day;
  • not be allowed to drink alcohol or take drugs; and
  • have to regularly report to the police.

If you can show that the bail conditions have been breached, you can immediately tell the police. If bail conditions were breached, the court can decide that bail should be taken away, and then the accused will be kept in jail until the trial.

Also, if you know the bail conditions, you will be able to tell if they conflict with a family court order. For example: a family court order may say that your abuser has the right to spend time with the children, but the bail conditions could say that he or she must stay away from you and the children. This is a conflict you will want to get fixed as quickly as possible by going back to family court to change the order.

The importance of NOT BREACHING protective orders

If a protective order is granted, both the accused (also called the “respondent”) and the victim (also called the “complainant”) need to know exactly what the protective order says. If a court order is not followed, this is called “breaching” a court order, and there can be very serious consequences if this happens.

For more information about breaching court orders, see the following resources.

PDF Do you have a court order?: Court Order Breach
Native Counselling Services of Alberta
English

PDF Breach
Native Counselling Services of Alberta
English

The accused/respondent

Even if you think that the other party has agreed to the breach, it is important to not breach the protective order. It does not matter if the other person agreed, or even contacted you first: you will be the one who suffers the consequences.

For example:

  • Terry and Alex were married and have two children.
  • They are now separated, and Alex sees the children every Saturday.
  • Terry has a protective order against Alex.
  • The Order says that Alex is not allowed to come to Terry’s home.
  • Normally, Terry and Alex exchange the children at Alex’s parents’ home.
  • One Saturday, Terry asks Alex to come get the children at Terry’s home.
  • Even though it appears that Terry is giving Alex permission to breach the order, Alex should not go to Terry’s residence: protective orders should not be breached.

The exact consequences of breaching a protective order depend on what kind of order it is.

For example:

  • Breaching a PAFVA EPO or a QBPO can lead to fines of up to $5,000 and jail time of up to 90 days for a first offence; jail time of 14 days to 18 months for a second offence; and jail time of 30 days to 24 months for a third offence.
  • Breaching a restraining order can lead to a finding of “contempt of court,” which can result in arrest, fines, and/or time in jail.
  • Breaching a peace bond can lead to being charged with a criminal offence, arrest, and imprisonment (generally 30 days for a first offence).
  • Breaching a no contact order can lead to arrest and being held in custody until the next court appearance.
  • If you breach a bail condition, you will end up back in custody and it will be much more difficult to get bail the next time.

The victim/complainant

Victims must also follow the terms of the protective order. If you breach the Order, it could cause problems if you ever need a protective order again in the future. Instead, you can go back to court to have the Order removed.

Changing (also called “varying”) protective orders

Although it is possible to change (or “vary”) protective orders, it can be difficult. The courts are concerned about safety—they treat the matter very seriously.

Therefore, changing protective orders, especially those issued in criminal court, is most common when the change is requested by the victim (not the accused/respondent). In criminal matters, it is common to have no contact conditions in place from the accused person’s release from jail until the resolution of the matter (through a trial or guilty plea). This can easily take 1-2 years.

For more detailed information about changing protective orders, see the Protective Orders Information Page.

Financial compensation and benefits for victims of crime

If you are the victim of a crime under the Criminal Code of Canada, you may be able to apply for financial compensation.

There are 2 kinds of compensation for victims of crime in Alberta:

  1. Restitution for financial losses
  2. Financial benefits for physical or emotional injuries

These are described in detail just below. You may qualify for both of these options.

Tip

If you do not qualify for these benefits, you may still be able to sue for compensation under the civil law. See the information above about financial help under the civil law.

Restitution

This is a court-ordered payment from the abuser to the victim, to pay for the victim’s financial losses. For example:

  • property damage or loss;
  • physical or emotional harm that led to financial loss; or
  • expenses from having to move out.

Restitution is only ordered if the abuser is found guilty of the crime. The victim can apply for restitution, and if the judge agrees, it can be included as part of the abuser’s sentence.

For more information about restitution, see the following resources.

PDF Restitution for Victims of Crime
Government of Alberta
English

Web Help for victims of crime
Government of Alberta
English
See “Apply for restitution.”

PDF Victims of Crime Handbooks (available in Amharic, Arabic, Chinese, English, French, Punjabi, Somali, Spanish, Swahili, Tigrigna, and Vietnamese)
Government of Alberta
Arabic, Chinese, English, French, Punjabi, Somali, Spanish, Swahili, Vietnamese

Financial benefits

This is a payment from Victims’ Services to the victim, to recognize that they were physically or emotionally injured as a result of a crime in Alberta. This benefit does not pay for financial losses related to the crime. Instead, it is a pre-set amount based on how severe your injuries were. Your injuries may be physical or emotional, but they must be verified by a medical professional who treated you (a doctor or counsellor).

You can apply for financial benefits even if the abuser is not criminally charged or convicted. However:

  • the crime must be reported to the police within a reasonable time; and

  • you will usually need to apply within 2 years of crime. If the victim was under 18 when the crime occurred, they have until they are 28 years old to apply.

For more information about who is eligible for the Financial Benefits Program, see the following resources.

PDF Financial Benefits for Victims of Violent Crime
Government of Alberta
English

Web Help for victims of crime
Government of Alberta
English
See “Apply for financial benefits.”

Audio/Web Victims of Crime
Calgary Legal Guidance
English

PDF Victims of Crime Handbooks (available in Amharic, Arabic, Chinese, English, French, Punjabi, Somali, Spanish, Swahili, Tigrigna, and Vietnamese)
Government of Alberta
Arabic, Chinese, English, French, Punjabi, Somali, Spanish, Swahili, Vietnamese

The full list of eligible offences and injuries is in the Victims of Crime Regulation. See the following resource.

Web Victims of Crime Act (and its associated Regulation)
Government of Alberta
English
See “Victims of Crime Regulation.”

Be Aware

If the abuse happened outside of Alberta, you are not eligible for the Financial Benefits Program. However, you may still be able to get restitution or other help from the province where the crime happened. For more information about your options, see the following resources.

Web Victim’s right to seek restitution
Government of Canada
English

Web Droit de demander un dédommagement
Government of Canada
French

Web A Guide to Financial Assistance for Victims
Victims of Violence
English

Web Financial Assistance
Canadian Resource Centre for Victims of Crime
English

Web Aide financière
Canadian Resource Centre for Victims of Crime
French

More information

For more general information about both of these options, see the following resources.

PDF If you Leave...Your Guide to Financial Support Options
Centre for Public Legal Education Alberta
English

Web Help for victims of crime
Government of Alberta
English

PDF It Starts Today
Today Family Violence Help Centre
English
See p. 10.

Web Compensation for Crimes
Centre for Public Legal Education Alberta
English

Making a claim under the Victims Restitution and Compensation Payment Act

Alberta’s Victims Restitution and Compensation Payment Act sets up a process for the government to recover property that is said to have been obtained by an illegal act. It allows a “Civil Forfeiture Office” to ask the court to seize property obtained illegally as well as property used to carry out illegal acts.

The victim can apply under this Act even if the accused has not yet been convicted of a crime. However, there must have been an investigation of the illegal act.

Family law issues while in jail

People who are in jail face many unique challenges when trying to deal with their family law issues.

Helping inmates with their legal issues

It can be difficult for people in jail to get legal information or legal advice for themselves.

Because of this, an inmate might try to have someone else help them with their case, such as a family member or a friend. This is possible, but that person may be asked for some kind of proof that he or she is asking for help on behalf of the inmate. As a result, inmates may need to provide some kind of written proof of the arrangement (such as a letter or email).

Sometimes, an inmate may even have to provide a “Power of Attorney.” A Power of Attorney is a document that gives someone else the ability to make your financial decisions for you. As family law issues often include financial issues (such as partner support, child support, and property issues), you can sign a Power of Attorney giving someone the authority to help you with these issues.

For more detailed information about making a Power of Attorney, see the Planning for Illness Information Page and the following resource.

PDF Making an Enduring Power of Attorney
Centre for Public Legal Education Alberta
English

Inmates’ right to legal research

Traditionally, prisons have provided inmates with access to criminal law textbooks. However, a recent Alberta court case found that textbook access was not enough. In this case (R v Biever), the court found that the inmate had a right to electronic resources that provided more recent legal information (although the court did not say exactly which electronic resources could be accessed). The court also found that inmates should have access to word processing and printing services (but these services do not have to be free).

If you are in prison, you may not have any internet access, or you may only have restricted internet access. You may need to discuss this issue with your caseworker.

For more information, see the following resources.

Web The Right of an Imprisoned Accused to Conduct Online Research
Centre for Public Legal Education Alberta
English


Web R v Biever, 2015 ABQB 301
CanLII
English

Inmates’ access to family law information, forms, and help

Inmates are generally assigned caseworkers who can help with criminal legal issues. These caseworkers are provided by Corrections Canada and are employees of the facility. They are generally not responsible for helping inmates with family law issues and paperwork.

If you are in jail and you do not have a family law lawyer, you can check with Corrections Canada about their policy of providing caseworkers who can help with family law forms. If your caseworker cannot help with family law information, you may need to find other ways to get family law information. Although you can find much information on the internet, inmates’ internet use is often restricted. As a result, you may wish to contact outside agencies that can help. A few options that you can start with are listed below.

The John Howard Society

The John Howard Society (JHS) is a Canada-wide organization that works with people who have come into conflict with the criminal law, including victims and people currently in jail. Although its services mainly focus on criminal law, it recognizes that criminal law and family law often overlap, and in such situations, it can help to provide information for both areas of law.

JHS has branches across Alberta, each with their own programs for providing help. For more information about the exact services provided in your area, see the following resource.

Web John Howard Society of Alberta: Services
John Howard Society of Alberta
English
Choose the location nearest you from the list on the right.

The Elizabeth Fry Society

The Elizabeth Fry Society is a Canada-wide organization that helps women and girls involved with the criminal justice system, including court support services. Contact either the Elizabeth Fry Society of Calgary or the Elizabeth Fry Society of Edmonton to see what help they can offer.

Web Programs
Elizabeth Fry Society of Calgary
English

Resolution and Court Administration Services

Resolution and Court Administration Services (RCAS) is a group of programs and services offered by the Alberta government to help people resolve their legal matters. RCAS staff:

  • help you stay out of court when possible;
  • help with the court process and forms if you go to court; and
  • offer free or low-cost programs to help families with the legal system.

If you are in jail, you can call to speak to RCAS staff. RCAS may be able to send you the paperwork you need. For more information about how RCAS can help you, see the following resource.

Web Resolution and Court Administration Services
Government of Alberta
English
Be Aware

These services used to be called Family Justice Services, Family Law Information Centres, and Law Information Centres. They are now together as a single point of contact to help Albertans with legal matters. However, you might still see some resources that call those services by their old names.

Native Counselling Services of Alberta

Native Counselling Services of Alberta runs a Family Courtworker program that helps Aboriginal families involved in the courts, including families involved with Children’s Services. These courtworkers are not lawyers, but they can help you present your case in court. They also offer other support services. Contact Native Counselling Services to see what help they might be able to offer you.

Web Family Courtworkers
Native Counselling Services of Alberta
English

Web Criminal Courtworkers
Native Counselling Services of Alberta
English

Web Contact Native Counselling Services of Alberta
Native Counselling Services of Alberta
English

Legal Aid Alberta

Even if you are not eligible to receive all Legal Aid services, you can still call Legal Aid Alberta for information and referrals. Legal Aid can be reached at 1.866.845.3425. For more information, see the following resource.

Web Getting Legal Aid - Eligibility
Legal Aid Alberta
English

Community legal centres

Community legal centres often have “legal clinics” when people can get legal help and advice. You may be able to call these clinics, or send someone who can ask questions on your behalf. For more information about community legal centres, see the Community Legal Resources & Legal Aid Information Page.

Inmates and legal representation

Private lawyers

Just because someone is in jail does not mean that he or she is not allowed to have a lawyer. Some lawyers have a “general” practice, which might mean that they can handle both criminal law issues and family law issues. However, this is not very common. You will likely have to find a lawyer who specializes in family law issues. See the Working with a Lawyer Information Page for more information.

Legal aid eligibility

If a person has a low income, he or she may qualify for financial help to cover the cost of a lawyer and court fees through Legal Aid Alberta. Legal Aid Alberta offers many forms of help for low-income Albertans, including legal advice, help with preparing documents, and assistance from a lawyer to deal with family legal issues.

Be Aware

Legal Aid is not free. If you qualify for a Legal Aid lawyer, you will get discounted rates and will be able to pay your bill over time without interest.

For more general information about the services offered by Legal Aid Alberta, see the following resources.

Web Services & Eligibility
Legal Aid Alberta
English

PDF Legal Aid Alberta: Services for Albertans
Legal Aid Alberta
English

Web Working with your lawyer
Legal Aid Alberta
English
Be Aware

Just because a person is in jail does not necessarily mean that he or she will automatically be entitled to Legal Aid. For example, if you have a spouse, your spouse’s income may still be considered when deciding if you qualify. However, it is worth asking if you qualify.

Even if Legal Aid says that a person is not eligible to receive all of their services, he or she can still call Legal Aid Alberta for information and referrals. Legal Aid can be reached at 1.866.845.3425. For more information, see the following resource.

Web Getting Legal Aid - Eligibility
Legal Aid Alberta
English

For more information about your options, see the Community Legal Resources & Legal Aid Information Page.

Communicating with your lawyer

In many facilities, phone calls are limited to 20 minutes at a time (but this varies between facilities and even between inmates). This time limit can be very challenging when discussing legal issues. However, in many facilities, inmates may be allowed multiple calls to their lawyers per day. Inmates can ask about the policies at their facility so that they know what to expect. They will also want to know about the maximum number of calls per week and whether there are any exceptions for legal help.

Also, inmates will need to know about the rules and limits for in-person meetings with their lawyers (especially if they are still meeting with a different lawyer for their criminal issues as well).

Guardianship and access to children while in jail

Many people think that because someone is in jail, that person cannot have guardianship of his or her children, or see or have contact with his or her children. This is not true.

Just because a person is in jail does not mean that they cannot have guardianship, access, or contact. The Alberta court system places a high value on contact with both parents, and it is actually quite rare for a parent to have his or her guardianship terminated, even if he or she is in jail. As always, any child-related issue is determined by what is in the “best interests of the child.” For more information about the best interests of the child test, see one of the following Information Pages:

That said, an inmate’s ability to see or have contact with his or her children will be affected by the facility where he or she is being held. Not all facilities allow in-person access: some only allow telephone access. It is important to know what is allowed at the facility in question.

As a result, parties may get a family court order that allows access, but they may not be able to follow through with that access. If that happens, the parties would have to go back to family court to change the Order to reflect the new situation.

For more information about changing parenting orders, see one of the following Information Pages:

Tip

For child and support-related issues, married spouses can choose between the federal Divorce Act and the Alberta Family Law Act. For detailed information about what to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

Child support and partner/spousal support while in jail

Many people in jail may think that because they are not earning much or any income, they do not have to worry about any child support or spousal/partner support orders against them. That is not true. Remember: family matters and criminal matters are separate.

Family court orders for support (both child support and spousal/partner support)remain valid until they are changed. As a result, if you are in jail and you do nothing about your support order while you are in jail, you are still responsible for the payments that the Order says you are supposed to be making. When you are released, you will have debts and penalties because you are now “in arrears.” Dealing with arrears will be time-consuming and expensive, and there is no guarantee that your arrears will be forgiven (in other words, you may end up having to pay all the arrears even though you were in jail and had little or no income).

Therefore, if you are in jail, be sure to ask at family court for a change (or “variation”) in the support payments. Dealing with the issue early will help you avoid having to deal with an even bigger problem later.

For more information about changing support orders, see the following Information Pages.

If you were not married, or married but plan to use the Family Law Act, see:

If you were married and plan to use the Divorce Act, see:

Tip

If you are married and unsure which law to use to deal with your family matters, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship under the Divorce Act Information Page.

Court appearances while in jail

When a person is in jail and they have to appear at a criminal court hearing, they are allowed to do so. However, this does not happen with hearings in family court: Corrections Canada will not automatically make arrangements to take you to family court. If you want to attend family court, you can talk to your corrections caseworker about if that can be arranged. You may also wish to ask Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

A person who is in jail may not be able to appear at a family court hearing in person. The Court, however, may not know that you are in jail. In general, if a person does not “show up” at a hearing (regardless of the reason), the hearing can still go ahead. When that happens, the judge can make decisions even without that person there, and without hearing that person’s side of the story. Or, the Court may not hear the matter at all, even if you would like it to.

If there is a hearing that you cannot attend in person, you have several options, including the following.

  • Have a lawyer attend the hearing to represent you.
  • Ask to have the hearing moved (this is called “adjourned”) to a time when you can attend. You will need to make this request well before the hearing date: just because a person asks for a last-minute adjournment does not mean that the judge will give one.
  • Arrange to appear by video (CCTV). Again, this is not something that Corrections Canada automatically arranges for you. You will have to make these arrangements yourself—and you will have to ask the court for permission in advance.

The exact processes for asking for an adjournment or arranging to appear by video vary across the province. Also, the two levels of court (Provincial Court of Alberta and Court of Queen’s Bench) have different procedures and paperwork.

For information about the exact process in your area and the requirements of the court your matter is being heard in, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Process

Because each person’s situation is different, there is no specific “process” to follow when dealing with family law and criminal law issues together. Please see the Law tab of this Information Page for general information about how criminal law and family law overlaps in Alberta, as well as resources that can help you work through your legal issues.

Last Reviewed: October 2015

Provincial Court

Queen's Bench

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