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Getting Arrested During Divorce

Getting Arrested During Divorce

Getting Arrested During Divorce

Getting arrested during divorce can lead to issues, such as losing custody of your children. Criminal law often goes hand in hand in family law. Emotions can go high during a divorce, and sometimes it brings out the worst in people.

I hope none of our family law clients ever need this article, but if you do, here is an explaination of criminal law in Canada.

The Criminal Code of Canada, a federal legislation, provides three kinds of offences:

  • Summary Conviction offences
  • Hybrid offences
  • Indictable offences.

Every offence has different set of penalties and there are different ways to deal with each offence. Therefore, it is very important that accused should have representation of a criminal lawyer who has working knowledge of the court’s processes and also of relevant legislation.

Whenever a person is charged with an offence or offences, a document is sworn which is called “Information“. This information sets out all the charges laid against the accused person. There is a process to swear the information, but it is beyond the scope of this article. In this article, I shall discuss three kinds of offences, listed in the Criminal Code of Canada and how they are dealt under the law.

Getting Arrested During Divorce- Different Offense Types:


Summary conviction offences, such as causing disturbance, are the less serious offences and warrant lowest penalties or sometimes Crown offers diversion – a legal course to resolve the charge (s) without getting a criminal record. A person charged with
a summary conviction is generally not arrested unless found committing the offence. The police officer often gives a notice of appearance to such accused, compelling him or her to appear in court at a certain date and time.

In summary conviction offences, it is notable that information must be laid within six months of commission of such offence. Under the Code, a person found guilty of an offence punishable on summary conviction is liable to a fine of not more than $5000 or a term of imprisonment not exceeding six months or to both.

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In Hybrid offences, such as Assault under S. 266 of the Code, the Crown may elect to proceed either by way of summary conviction or as an indictable offence. This Crown’s decision is based on different factors such as the seriousness of the offence. Until the Crown has not elected, the offence will be considered an indictable offence for the purpose of bail and all other interim processes.

Getting arrested during divorce
Getting arrested during divorce

Information regarding Crown’s election is normally given in the charge screening form – part of the disclosure. It is worth to mention here that if the trial of an accused person in a hybrid offence proceeds before a summary conviction court and the Crown has not elected, there is a presumption in the law that the Crown has elected to proceed by way of summary conviction.


Indictable offences are the most serious offences due to their nature, such as “murder”. A person charged with an indictable offence will be arrested when the police forms reasonable grounds to believe that accused person has committed or is about to commit an indictable offence. In case of arrest of such accused, he or she will be brought before the court within 24 hours of his or her arrest. It is recommended that accused should avail legal representation at all stages of his or her case. It is notable that there is no limitation period for indictable offences and the police can charge a person accused of an indictable offence, even after years of its committing.

Three Ways to Proceed By Indictment:

Absolute Jurisdiction offences, such as theft under $5000, are spelled out in S.  553 of the Criminal Code of Canada. Ontario Court of Justice has “absolute Jurisdiction” to deal with these offences. There is no jury trial available in such cases. The accused can neither elect the mode of trial nor get a right to request preliminary inquiry.

Indictable offences, such as murder, are governed by S. 469 of the Criminal Code of Canada and Superior Court of Justice has exclusive jurisdiction on such offences. The accused charged with such indictable offence (s) has right to preliminary inquiry and the trial is conducted before the judge and jury.

Indictable Offences

All the indictable offences, which do not fall either under s. 553 or S. 469, are enumerated in Section 554 of the Criminal Code of Canada. In these indictable offences, the accused gets a wide choice to elect the proceedings of his or her case. The accused has the option either to elect his trial before a judge of Ontario Court of Justice or elect his trial before Superior Court of Justice comprising of a judge and jury or judge alone. In either case, both the defence and the Crown can request for a preliminary inquiry before the Ontario Court of Justice.

Although the accused charged with criminal offence or offences can be self-represented; but, in order to avoid any implication – such as immigration issue or criminal record, it is always recommended that accused person should be represented by a lawyer who has the working knowledge of the criminal courts’ proceedings. Criminal lawyer should be competent to defend his or her client’s case effectively, in order to protect accused’s rights under the law.

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This article is written and published for information purposes ONLY and it MUST NOT be considered as legal advice or opinion. You should seek appropriate counsel for your own situation. And please note – this information is directed toward readers in Canada only.

The writer of this article shall not be liable for any special, direct, indirect, consequential, or incidental damages.  No damages will be awarded whatsoever. This is true whether in an action of contract, negligence or other tort. No damages will be awarded arising out of or in connection with the use of information given in this article.

Getting arrested during divorce can lead to custody issues. Reach out to our law firm for legal help.

Author: Nasar Iqbal, family and criminal lawyer in Toronto, Canada