Where Family Meets Crime – The Crossroads of Law

If it's been a year since you've had a relationship with those kids, you're going to have to build that relationship back up.

Family-law files can become extremely combative.

Is there a difference in how justices in King's Bench treat unproven allegations?

Allegations can be weaponized.

Matt, Tahir. How are you? Welcome to the TC Legal Podcast.

Thanks a lot. Appreciate it.

I haven't seen you in a long time.

No, it's been a minute.

It has been.

I don't think I've seen you since you graduated from law school.

Then you went and became a legend in the family-law industry here in Alberta.

That's high praise. I appreciate the legend part, but yeah, it's been coming along.

So you're at a firm called Crossroads Law.

That's right.

And they've obviously developed a pretty significant presence in family law across Western Canada over the last number of years.

Yeah.

Our founding partner, Marcus, has done a really good job of building out the firm.

We started in 2017 with four lawyers and about three staff between two offices in Vancouver and Calgary.

Now we're up to, I want to say, about 24 lawyers and a similar number of staff between the two offices.

So there's been quite a bit of growth over the last eight years.

What would you say sets Crossroads Law apart from some of your competitors?

I think we take a very client-centred approach to our practice.

We also offer different types of retainers and service models depending on what people need.

As I'm sure you guys know, there are a lot of access-to-justice issues.

We were early adopters of legal coaching and limited-scope legal services.

Coach My Case, right?

Yeah.

It used to be Coach My Case. We now provide that type of service through Crossroads Law.

My understanding is that there are some other things happening with Coach My Case that I'm probably not able to talk about yet, but it may be coming back.

Basically, it means you can get as much or as little legal help as you need.

You don't necessarily have to retain a lawyer to go to court for you, answer every email or handle every piece of correspondence from opposing counsel.

If you need help, you can book some time with someone and you're billed for the time you actually use.

If you talk for 20 minutes, you're charged for 20 minutes.

If you want us to review documents or prepare documents that you can then use in court yourself, we can do that.

It really depends on what the person needs.

There are a lot of things in family court that people may be able to handle themselves with some guidance.

A lot of people don't qualify for Legal Aid because they earn too much, but they also don't earn enough to pay a lawyer to represent them full-time.

So we try to fill that gap by providing support in the background.

Do you find that Crossroads is fairly unique in offering those types of limited-scope services?

I believe so.

I think a lot more people are doing it now.

When we started, I wasn't aware of many other firms in the province offering it.

I can't say for sure nobody else was doing it, but I wasn't aware of them.

You've also borrowed a little bit from plaintiff-side personal injury by offering some services on a contingency basis. Is that right?

We do a little bit.

We don't do a lot of contingency work, and we're fairly selective about which files we can take that way.

But it is another option we can sometimes offer.

I feel that, especially over the last 10 years or so since we were called to the bar, there's been an increasing overlap between criminal law and family law.

How do both of you see those two areas interacting?

Definitely from the defence perspective, we have a lot of individuals who come in charged with something relating to domestic assault or sexual assault within a relationship.

That almost always has the potential to spill over into family court.

It's especially significant when children are involved — parenting time, decision-making responsibility, possession of the family home and things like that.

One of the main reasons is that, in Alberta, if you're charged with something like domestic assault or sexual assault, your release conditions will often require you to have no contact with the complainant and not attend where that person lives.

That can apply even if you're the one paying the mortgage on the property.

That automatically stops you from speaking to your spouse — somebody you may share finances with and co-parent with.

It can also stop you from going to the family home, except perhaps once with a police escort to retrieve personal belongings.

I've had many clients come to me saying, "I just want to see my kids. I just want to know what's happening."

I tell them to speak to a family lawyer right away because I don't practise family law, and that's by choice.

Sometimes they come back and tell me, "My family lawyer says I can't do anything until the criminal matter is finished."

That sounds concerning to me because my limited understanding is that, when the test is the best interests of the children, if you've been separated from your children for a long period of time, rebuilding that relationship can become increasingly difficult.

These criminal cases can realistically take eight to 14 months.

Is waiting really the best advice?

Like everything in law, and especially family law, it depends.

But generally, I would say no.

There are options available for establishing parenting time.

Even where the allegations are serious, supervised parenting time may be available.

It's usually better to take steps toward establishing some parenting time while the criminal matter is ongoing.

If you wait until the criminal case is completely finished before beginning the family-law process, you're effectively starting from scratch.

If it's been a year since you've had a relationship with those children, you're going to have to rebuild that relationship.

So you're generally better off trying to get into family court and obtain some sort of parenting order or access at the very least.

Most emergency protection orders will have provisions dealing with exceptions for parenting orders.

So you may have an emergency protection order in place while also obtaining a separate parenting order.

When you're seeking a parenting order, is it all or nothing?

If you're trying to see your children, do you have to start the whole process — divorce, property division and everything else — or can you simply deal with parenting time?

No.

You can deal with specific issues.

You may eventually want to address everything, but certain issues are obviously more urgent than others.

There's only so much a court is going to deal with at one appearance.

If you're going into morning chambers, the court may only want to deal with one primary issue.

You might only have about 20 minutes.

Those hearings are often used to make temporary, Band-Aid-type decisions that can move matters toward a more formal hearing, such as a domestic special, oral hearing or trial.

So you want to be strategic about what's most important.

If possible, you may also want to bring some of the other issues outside the courtroom and deal with them through mediation or mediation-arbitration.

Even where there are domestic-violence allegations, mediation can sometimes still be possible and beneficial.

That's something you do specifically.

Yeah.

I offer mediation-arbitration services.

I can act as a mediator-arbitrator in lawyer-assisted mediations or directly with parties who want to come see me.

Have you done that with people dealing with domestic-violence allegations, either inside or outside the court system?

Yes.

There are a number of safety precautions you can put in place.

For example, one person can arrive first and be placed in one room.

The other person can then arrive and be placed in another room.

The mediator can go back and forth between them rather than having everyone sit together.

We try to make everybody as comfortable as possible.

Even where the allegations haven't been substantiated, if the goal is to resolve something, you want everyone to feel safe enough to participate.

You can structure it to work for everyone.

You might let the person who feels unsafe leave first, allow them time to get to their vehicle, and then have the other person leave afterwards.

There are a lot of logistical considerations.

There have also been studies and articles discussing potential benefits of mediation in cases involving domestic violence.

Generally speaking, mediation can be a very effective way to resolve family-law matters.

It gives the parties an opportunity to help create the solution rather than handing the decision entirely to a third party — a justice — who then tells you what you're going to do.

You hope the court's solution works for your family.

In mediation, you can sit down and try to work something out.

Even if mediation eventually turns into arbitration, you at least had some choice in selecting the arbitrator rather than having a justice assigned shortly before the hearing.

Let's talk about some of the more combative family-law files.

I know as well as anybody that family law can become extremely combative.

I practised family law for a few years, and like Kait, I don't practise it anymore for a reason.

One word both of you have mentioned is "allegations."

Do you think allegations sometimes become weaponized?

Are parties in family-law disputes ever using criminal allegations strategically in family-law battles?

I would say that can happen.

I want to be careful because emergency protection orders serve an extremely important purpose and domestic violence is a very real issue.

But the process can create an opportunity for allegations to affect the other party's position before those allegations have been fully tested.

If one person obtains an EPO — an emergency protection order — before the other person has an opportunity to respond, it can sometimes put the other party on the back foot regarding parenting until the issue is addressed.

We'll probably talk about EPOs more in another episode.

One safeguard is that emergency protection orders are supposed to return to court fairly quickly.

An EPO is obtained through an ex parte application, which means the other person isn't there when the initial application is made.

Because of that, it needs to come back before the court for review relatively quickly.

Yes and no.

If somebody gets an EPO, they typically appear before a justice of the peace or a provincial court justice and obtain the emergency order.

Then, within a relatively short period — I believe about nine days — there should be a review date.

At that first review, the parties might agree to convert it into a mutual no-contact order, set the matter down for an oral hearing, or the person who originally obtained the order may agree to have it vacated.

So either you reach an agreement relatively quickly or the process can take considerably longer.

My most recent one took approximately two or three months before we reached the oral hearing where the issue could actually be determined.

That comes up particularly in more contentious criminal matters.

To be fair, based on my experience both as Crown and defence counsel, there is often a cooling-off period.

Even after one or two weeks of being separated, people involved in a domestic-violence situation or allegations of domestic violence sometimes become more willing to reach some form of agreement or amend conditions.

That might allow them to deal with parenting, finances or potentially even reconciliation.

It's the smaller percentage of cases where someone says, "Absolutely not. I don't want them near the children. I don't want them near the house. I don't want any relationship with them."

A lot of times, criminal release orders begin with broad conditions.

Common conditions include no direct or indirect contact with the complainant and sometimes no contact with the children.

There may be an exception for contact authorized by an order from a court of competent jurisdiction.

For parenting matters, that will often involve an order from the Court of King's Bench.

Would a mutual no-contact order or parenting order have a similar practical effect in allowing access to the children?

Yeah.

A mutual no-contact order can operate similarly to a King's Bench protection order, except that it applies to both parties, which can reduce some of the stigma or imbalance associated with one-sided restrictions.

It can keep the parents from communicating directly while still allowing exceptions.

For example, they may both attend court or mediation.

They might communicate specifically about the children through designated email addresses or another structured method.

They may also be allowed to attend the same location for parenting exchanges.

So for somebody who has restrictive criminal conditions, one of the best things they can probably do is speak with a family lawyer and get advice about obtaining an enforceable parenting order while the criminal case continues.

Absolutely.

Getting involved quickly and trying to establish some form of parenting time is generally what I would recommend.

In the types of cases Tahir was mentioning, where allegations can potentially be weaponized, criminal court starts with the presumption of innocence.

In my experience, family court treats evidence somewhat differently.

Is there a difference in how King's Bench justices deal with unproven allegations?

Are they given some weight simply out of caution?

The difficulty is that allegations can potentially be weaponized, but when the court is dealing with parenting, the approach is usually safety-focused.

The court may say, "We don't know whether this allegation is true yet, but until we can test it, we're going to put safeguards in place."

I don't know many justices who would simply ignore a serious allegation and risk learning later that significant abuse occurred or that children were harmed.

That's what they're trying to avoid.

Everything is very child-focused.

The analysis comes back to the best interests of the children and looks at the situation from their perspective.

If there's a potential risk of harm, the court will generally try to protect against that risk.

These are interim decisions.

Eventually the allegations may need to be tested at a more formal oral hearing or trial.

But that takes time.

In the meantime, someone may have reduced parenting time or conditions placed on their parenting time because of the allegations.

So allegations that haven't yet been proven can still influence interim orders because the court is balancing the parent's interests against the possibility that, if the allegations are true, the children could be seriously harmed.

But you acknowledge that this opens the possibility for false allegations to be made against a parent?

Yes.

That possibility exists.

I couldn't tell you what percentage of allegations are false, but it is a concern, and I've dealt with files where allegations were ultimately shown to be false or unsupported.

I want to talk about Coach My Case because I think it's an innovative approach to access to justice.

When I practised family law, it seemed like the justice system wasn't always well equipped to help people who earned too much to qualify for Legal Aid but not enough to retain a lawyer privately for the entire case.

What has your experience been assisting people through legal coaching?

It's been very positive.

I believe there's even a written decision involving one of my previous coaching clients where he was able to recover some of his legal fees as costs.

The court discussed the benefit of having a lawyer working in the background and the improvement in the quality of the materials that were presented as a result of that support.

So it's been very helpful.

As I mentioned, many people can handle portions of a family-law matter themselves.

But the process can become complicated, so having some professional guidance in the background can make a significant difference.

In criminal court, even if you don't have your own lawyer or don't qualify for Legal Aid, there is often duty counsel available.

When you attend docket court or certain disposition courts, there's generally a criminal lawyer available who you haven't personally retained.

Family law doesn't necessarily have an identical system. Is that fair?

Yes and no.

In morning chambers, and I believe in some self-represented courtrooms, there are resources available.

In Alberta Family Docket Court, which is essentially a triage court in King's Bench that helps determine next steps, there is duty counsel available.

But I wouldn't say the assistance is as extensive as what you may see on the criminal side.

You might attend court, wait to speak with duty counsel that morning, and they'll help explain your options or guide you through what can happen next.

In Family Docket Court, it might be something like, "Here are your available options. These are the things you could ask the court to do next. After that, these are the steps you'll need to take. What do you want to do?"

In morning chambers, duty counsel may tell the court, "This is what the person has told me they want, and these are the facts they've provided."

Then the justice may ask the parties additional questions.

When dealing with self-represented individuals, I know that as Crown counsel I sometimes struggled with the power imbalance.

Criminal law is obviously adversarial.

It's the state against an individual.

When the person is unrepresented, that imbalance becomes even more obvious.

The Crown and the judge still have to make sure that Crown counsel remains the prosecutor and isn't providing legal advice to the accused.

When I've observed family court or EPO proceedings, it sometimes seems that because the self-represented person may not understand the test or what they need to do, the court puts more pressure on the only lawyer in the room to help navigate the issue.

That can make it harder for that lawyer to focus exclusively on advocating for their own client.

Is that fair?

Yeah.

You still have an obligation to the court to make sure you're presenting matters properly, making balanced submissions and dealing fairly with the evidence.

Sometimes family lawyers can become too focused on simply repeating everything their client tells them as though it's established fact.

They'll say, "This is what my client says, therefore this is what happened."

But that's not what the court is looking for.

The justice wants a balanced presentation that helps them decide what should happen.

Especially at an interim stage, the court is trying to determine the best temporary solution.

If the other person is self-represented, you have to walk the line between fulfilling your obligations to the court and avoiding giving legal advice to the opposing party because you represent your own client.

Do you think legal coaching helps self-represented people understand the applicable legal test and what will actually be relevant before they walk into court?

Is that something judges appreciate?

Yeah.

A lot of my conversations through Coach My Case, and through legal coaching at Crossroads Law more generally, are simply about explaining what to expect.

Where do I go?

What's going to happen?

We'll explain the process.

"Here's what will happen first. Here's what the justice may say. You'll see other matters proceed before yours. You'll wait until your number is called. Then you'll go forward, and the justice may ask you some questions. You'll explain what you're asking for and proceed from there."

Once you explain the process, you can almost hear the relief in someone's voice.

A lot of the anxiety comes from the procedure rather than the legal issue itself.

Exactly.

What kind of cost savings can someone see by using legal coaching instead of full representation?

It can be substantial.

I've had coaching clients where I spoke with them for an hour and then they handled the rest themselves.

So I charged them for one hour.

On the other hand, a five-day trial can involve tens of thousands of dollars in legal fees.

There can be significant savings.

But if the case is genuinely complex, you probably need more assistance and may want full representation.

In criminal law, I rarely tell people to represent themselves when the matter is serious because the power imbalance is so significant.

Lawyers may be able to negotiate better resolutions, and cross-examination and trial procedure are areas where the court can't simply step in and help an accused person.

But I appreciate that you're being open about the fact that some aspects of family law can be handled by people themselves with appropriate coaching.

At the end of the day, though, if the matter is highly complex and the stakes involving parenting are significant, is that when you would recommend full representation?

Most likely, yes.

Especially if the other side is highly conflictual.

You're going to want someone helping you manage the process, attend court and understand what to expect.

In high-conflict parenting matters, there can be a constant stream of communication and allegations coming from the other side.

Sometimes just having someone there saying, "Don't panic. We need to stay focused. Keep doing this. I've got your back," goes a long way.

I probably should be telling everyone how complicated it is and saying, "Come hire us for everything."

But my firm's philosophy has always been about helping people navigate the system and helping as many people as possible.

That's just how we operate at Crossroads Law.

Let's bring it back to the criminal side for a moment.

Say someone comes to you with criminal charges and restrictive conditions.

Hypothetically, they've been charged with domestic assault, have no prior criminal record and have historically been very involved with their children — coaching hockey, attending school events, picking them up and things like that.

What advice would you give them?

What steps should they take to avoid losing that relationship with their children or losing ground if the matter eventually proceeds through family court?

Do everything that's reasonably asked of you.

These are still allegations, and you don't have to agree that they're true.

But if you can proactively address the concerns, it may help you move forward.

Take alcohol, for example.

You may have one parent saying, "He's an alcoholic," and using that allegation as a reason why there shouldn't be parenting time.

Depending on the circumstances and legal advice, someone may choose to attend AA or another appropriate program.

If anger is being raised as an issue, they may take an anger-management course.

At the very least, they may then have documentation showing they've completed something addressing the concern.

Even if you dispute the allegation, it may remove one of the hurdles the other side keeps raising.

If you simply deny every allegation while doing nothing else, by the time you reach trial you may still be dealing with those same issues.

If you can address reasonable concerns earlier, you may be able to move your parenting case forward sooner.

Then, when you eventually reach trial, you can say, "Look at everything I've done."

"These allegations were made against me. I didn't agree with them, but I still took proactive steps to address the concerns."

Taking a course doesn't necessarily mean you're admitting guilt.

You can say, "They alleged I had this problem. I didn't believe I did, but I completed the program anyway because I wanted to demonstrate that I'm taking the situation seriously."

Have you seen that make a difference?

Yeah.

Judges appreciate reasonable conduct.

They also appreciate initiative.

That type of behaviour can demonstrate that someone is being proactive and reasonable.

Another thing to clarify is that people often talk about "my rights to my kids," "mom's rights" or "dad's rights."

That's not really how the court approaches it.

Family court is focused on the children's best interests.

The question is what relationship is in the child's best interests given the circumstances and allegations.

If concerns exist, maybe parenting starts with supervised visits or limited unsupervised time.

But if that parent is also showing that they're taking reasonable steps and addressing concerns, that can support gradually increasing contact and rebuilding the relationship.

Because these matters can take such a long time to finally resolve, if you can address some of those concerns before they become major obstacles, it can help.

Just to loop back to one of the first things I asked:

The advice that you can't do anything in family court while criminal proceedings are ongoing isn't a one-size-fits-all rule, right?

It's definitely more the exception than the rule.

You should generally be trying to negotiate some parenting time and see what can be arranged.

If the other party won't agree to anything, then you may need to take the next step and seek a court order.

I wouldn't necessarily walk into court and immediately ask for shared parenting where serious allegations are outstanding.

But the children still need a relationship with their parents where that can occur safely.

If one parent is facing allegations, there needs to be some appropriate way to maintain or rebuild that relationship.

Well, Matt, I'm checking our time.

I know we were hoping to go through a number of topics, but I think this has been a good introduction to the crossover between criminal law and family law.

So thanks so much for being here today.

Yeah, it was a lot of fun.

Thanks for having me, guys.

I appreciate it.

I'll definitely be back.