Posted by Anita Guyadin, J.D. on 6/12/19

More | Report Post

Family violence still occurs nowadays and it could be
related to family law. Family law encompasses issues and
disputes occurring within a family setting. Subjects
subsumed under family law include divorce, separation,
family justice services, child custody, and access, spousal
support, child support, equalization of family property,
the matrimonial home, enforcement of support payments,
child protections and adoptions. [1] The family law court
is competent to make orders regarding these matters.
However, in some circumstances, actions surrounding these
subject areas overlap with offences under the Criminal
Code. [2] For example, criminal charges apply for
withholding access to the matrimonial home, stalking,
assault and sexual assault. [3] There is no doubt that
criminal charges should be available to protect some
families, but the Criminal Law has been both a blessing and
a curse for Family Law matters.

The Benefits A clear benefit of the Criminal Justice System
is that a victim has the benefit of state resources to
prosecute the offending party.“Beware Family Court: What
Victim’s an Advocates Should know” [4]. As an aside, I
acknowledge the complexities involved in labeling a
particular party as a victim, but for ease of reference,
the term victim will be used to refer to someone on the
receiving end of criminal or oppressive circumstances. In a
family court, a victim must face the offending party on
equal footing.[5] In sharp contrast to the criminal law
setting, an offending party can also hurl counterclaims
against the victim in family court that the victim must
defend against. [6] Furthermore, victims of crimes under
the Criminal Code are entitled to certain benefits and
resources from the state.[7] At this moment, the federal
government is planning on passing legislation that would
create a Victim’s Bill of Rights [8]that would increase
victim services. This Bill would create stronger positive
rights for victims of crime such as allowing family members
to claim funds for victims, and a process to review
complaints against the system. [9] Hence, families dealing
with abusive or other criminal situations could benefit
from these resources as they begin the process of
recovering from an abusive partner.

Another theoretical benefit of the criminal law system
(that may also be perceived as a negative in an
application) is that public policy does not allow for
discretion in domestic assault cases. Police must lay
charges if they are called to the scene during a domestic
dispute.[10].This is to prevent one spouse from
intimidating another into not pressing charges. Taking away
the decision to press charges from the victim, is supposed
to take away the blame and ill will between the accused and
the victim.

The Issues In an issue of family violence, Criminal Law can
also be used as an improper way to gain an advantage in
family court. [11] For example, a criminal charge, whether
undeserved or not, is a quick way for the other party to
gain exclusive possession of the matrimonial home and to
thwart the other side’s custody claims to children. [12].
In Shaw v. Shaw, a husband called police to lay charges on
his wife one month after the incident in question occurred.
[13] The evidence suggests that he only made the decision
to charge her after having a discussion with his lawyer.
[14]

Using the Criminal Law in this manner is not a new
phenomenon, but there are no comprehensive studies or
statistics on the improper use of the Criminal Law to shed
light on how prevalent the problem is in family court.[15]
This is because most domestic violence situations occur in
the privacy of the home, where there are no witnesses that
could assist in the prosecuting and fact-finding
process.[16]

The criminal process contributes to a breakdown in
communication between parties and increases the timelines
involved in resolving matters.[17]Criminal charges may take
at least a year before they are tried. [18] To combat these
time increases, innocent defendants may plead guilty just
to further along the process of gaining access to children,
to the matrimonial home, or to reconcile the family.[19]

Family Violence, Food for Thought In circumstances where
there are genuine criminal acts being perpetrated within
the family setting, there is no dispute that criminal
charges are necessary. Criminal acts within a family
setting should not be tolerated. However, Criminal Law
should not be used to gain a tactical advantage. Lawyers
should never advise clients to lay charges against the
other spouse unless there is a legitimate basis for doing
so.[20] It may even be necessary for public policy to shift
to allow police some discretion on whether to lay
charges.[21] However, this must be done in a way to ensure
violence and intimidation will not be perpetrated against a
victimized spouse. While police should definitely err on
the side of caution when they are called to domestic
situations, a strict zero-tolerance stance may not be
appropriate.[22] The rights of all parties in the family
must be considered.

In the integrated family violence court currently being
tested out in Toronto, the same judge hears the family law
issues and the domestic violence criminal charges at the
same time.[23] This is a definite step towards recognizing
the uniqueness of Family Law related criminal charges and
questioning the appropriateness of putting them through the
usual Criminal Law track. As Family Law and Criminal Law
intertwine there must be some mechanism in place to manage
the growing inter-connectedness between Family Law and
Family Law related Criminal charges.

FAMILY VIOLENCE

FAMILY VIOLENCE, 6/12/19, by Anita Guyadin, J.D. .

Family Law Chatboard

LATEST POSTS | BY TOPICS | SUBMIT A POST