Parental Decision-Making
Parental decision-making — formerly called "custody" in Ontario family law — is the legal authority to make major decisions about a child's life: education, religion, medical care, extracurricular activities, and place of residence. Parental decision-making is a family-law concept, not a criminal one, but it intersects routinely with criminal cases — particularly those involving allegations of domestic violence or child welfare.
Mass Tsang LLP focuses on criminal defence and does not practice family law. The firm regularly works alongside family lawyers where charges affect parenting arrangements. For related issues, see our blog posts on domestic assault charges and how they can be resolved.
How criminal charges affect parenting
A criminal allegation can affect family-law dynamics in several ways: bail conditions may bar the accused from the family home or from contact with children; the allegations themselves can influence family-court findings about the child's best interests; conviction outcomes (particularly for violent or sexual offences) factor heavily into decision-making and parenting time determinations; and Children's Aid Society involvement can run in parallel, especially where the child was present during the alleged offence.
The best interests test
Family courts in Ontario apply the best interests of the child test under section 16 of the Divorce Act and the Children's Law Reform Act. Allegations or findings of intimate-partner or family violence are explicit factors. Pending criminal charges, even before trial, can affect interim orders. A criminal conviction can be near-decisive in some cases.
Bail and family-court order coordination
Where criminal bail conditions and family-court orders conflict — for example, a no-contact bail term that complicates court-ordered access with children — the criminal order generally prevails for the accused, but the family court can adjust its own order to work with the criminal terms. Coordination between criminal counsel and family counsel is essential. Common workarounds include third-party access supervision, communication through counsel, and exchange of children through neutral parties.
Strategic considerations
For accused parents, the criminal strategy should always consider family-law consequences. Avoiding a conviction — particularly for domestic-related offences — can preserve parenting arrangements that a conviction would jeopardize. Resolution outcomes (peace bonds, discharges, withdrawals after conditions) often preserve family-law flexibility that a conviction would close off. Where parenting is at stake, the criminal defence and the family case should be coordinated from the start.
Related glossary terms
