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Gary Stuart Joseph, Partner and Firm
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When Family Courts and Criminal Courts Collide: The Impact of Bail Conditions on the Adjudication of Family Law Matters
By Gary S. Joseph, LL.M., partner, and Michael Stangarone, LL.B., associate
MacDonald & Partners LLP
1. INTRODUCTION
The intersections between criminal law and family law pose significant challenges to both family law counsel and the administration of justice. It is an unfortunate reality of family law that some litigants attempt to use the criminal court process to gain advantage in the family law litigation. Those litigants take advantage of restrictive bail conditions, which invariably include non-contact terms, to cement a status quo early on that may wrest custody of the children from the primary caregiver, oust one party from his or her home and restrict or deny access to the children. It is imperative that family law counsel work with their criminal law counterparts from the outset to ensure that justice is done. Those cases of genuine domestic violence must be addressed with all urgency and care to protect the victims. Cases of fabricated or exaggerated allegations must be vetted to prevent injustice. If not, the outstanding criminal court proceeding can have a devastating impact on a family in conflict. The first steps taken in a family law case where criminal charges have been laid are crucial in the proper adjudication of the outstanding issues in the family court action.
A. The ‘Status Quo’ and the Duty of the Court
Great importance is placed on the status quo during interim custody proceedings than at trial. Criminal charges are often laid at the early stages of the action, creating a status quo that may benefit one party and disadvantage the other given the length of time it will take before the criminal court matter is adjudicated. Some litigants will use bail conditions to create a status quo that did not exist prior to the laying of the charges in an attempt to wrest custody and gain possession of the home1 . The Family Court controls its own judicial process2 . The Court has a duty to litigants to ensure a timely process so that family matters are properly adjudicated. However, by the time the criminal charges are determined, it may be too late to reverse the damage created by the initial laying of the charges.
B. The Impact of Ex Parte Proceedings
As is too often the case, a court action may start by way of ex parte motion after allegations of abuse are made against one party. The allegations may result in that party being removed from the matrimonial home and/or criminally charged. In our respectful view, ex parte orders are granted far too often in the family court. Such orders, based on one party’s untested evidence alone, should only be granted in the most urgent and dire of circumstances. While a litigant has an obligation to provide full disclosure on an ex parte motion, the Court is invariably left with the near impossible task of deciding the truth based on only half of the story3 .
The accused will likely maintain his or her innocence and could be fully vindicated at the criminal trial, but that trial will not take place for some time. In the interim, decisions have to be made in the family court action. The accused will be put to the considerable emotional and financial cost of having to defend himself or herself as a result of the allegations. A status quo will be established in the process largely as a result of the criminal charges. The moving party may obtain temporary care and control of the children, and a restraining order. In some cases, the restraining order may be used to restrict and obstruct the accused’s relationship with the children.
Courts are understandably reluctant to grant ex parte Orders, which must be returned for review within 14 days pursuant to the Rule 14(14). An Order made without notice may have significant impact on the outcome of the case, and disrupt the status quo in place, to the benefit of one party and to the detriment of the other. Counsel must be vigilant in ensuring that there is a sound evidentiary basis on which to seek such significant relief on a without notice basis. An ex parte Order will be set aside where the litigant does not make full and frank disclosure to the Court.4 A party who unjustifiably brings without notice proceedings will cause an explosion of costs in the matter. A court will not look kindly on a litigant where it is determined at the return of the ex parte motion that an emergency situation did not exist at all. In the circumstances, counsel should carefully consider the merit of proceeding on a without notice basis to avoid potential sanctions by the Court, including an order for costs against the client5 .
C. Criminal Charges and the Family Court
Outstanding criminal charges can have a significant impact on the progress and outcome of a family law case. Injustice may result where a family court cedes decision making to the criminal court, where the best interests of children are not determinative or bear any part of the adjudication of the outstanding issues. Family counsel and the Court must prevent the criminal court action from dictating the process of the family court.
2. The Allegations: Before the Bail Conditions Are in Place
It is the duty of family counsel to take immediate steps to protect a client’s personal safety where he or she is alleging that his or her spouse is abusing or threatening him or her, or the children. If there is legitimate urgency to the matter, counsel should bring an urgent motion, either without notice pursuant to Rule 14(12) of the Family Law Rules (“the Rules”) or on short notice, seeking a restraining order pursuant to section 46 of the Family Law Act and/or section 35 of the Children’s Law Reform Act, interim custody, and exclusive possession of the matrimonial home and its contents under section 24 of the Family Law Act.6 Section 24(3)(f) expressly provides that one of the considerations in determining whether a party should have exclusive possession of the matrimonial is “any violence committed by a spouse against the other spouse or children.” Our Courts have taken an expansive view of what constitutes violence under section 247 .
3. The Aftermath: Dealing with the Bail Conditions
In many cases, the parties’ separation occurs as a result of an act of violence and subsequent criminal charges. Criminal assault charges laid in the course of a family law action complicate the litigation or the negotiation of otherwise straightforward cases. The client may be in a state of shock or dislocated as a result of the charges and the terms of the recognizance. For most parties, this is their first foray into the criminal justice system. Family counsel must work with criminal counsel to engage community resources at the earliest opportunity to assist the complainant, or, if acting for the accused, a competent criminal law counsel is retained who is willing to work with, and share information with family law counsel8 . Family counsel must be attuned to the emotional stresses being experienced by the client who has been victimized or criminally charged, and an action plan should be developed as soon as possible so that steps may be undertaken immediately to move the matter forward in the best interests of the client and the children. When acting for the complainant, reasonable steps must be in place to protect him or her from further violence.
A. Representing the Complainant
After the accused is charged and the bail conditions are set, the complainant will likely immediately move on an urgent basis for relief in the family court, seeking orders for interim custody and restrictions on access, a restraining order, and exclusive possession of the matrimonial home. Family counsel should be cognizant of the fact that a restraining order or an order for exclusive possession may be unnecessary given that the terms of the accused’s interim release will likely include non-contact terms between the spouses. The family court will likely not make an Order if the accused is already restrained from contacting the complainant pursuant to the terms of the release order. A motion for exclusive possession may be dismissed where the accused is subject to an undertaking to stay away from the matrimonial home9 . However, the complainant has little or no control over the criminal court proceeding. The conditions may be varied or withdrawn at any time, at which point counsel may need to proceed to Family Court to seek relief.
If the parties were living separate and apart in the matrimonial home at the time of the criminal charge, an urgent motion should be brought to determine temporary parenting arrangements if children are involved in the case. If temporary custody and access terms were in place, a motion may be needed to vary those terms. A joint custody arrangement will prove unworkable if the parties are unable to communicate pursuant to the terms of the release order. The access exchanges may need to be changed in light of the non-contact terms. A copy of the interim release conditions should be obtained at the earliest opportunity to determine what, if any, contact can be made between the parties.
Family counsel must act with caution in advising the complainant. Counsel should ensure that there is no suggestion that he or she is attempting to gain advantage in the family court action. Rule 2(4) of the Rules of Professional Conduct provides that “a lawyer shall not advise, threaten, or bring a criminal or quasi-criminal prosecution in order to secure a civil advantage for the client”. The complainant should be encouraged to deal with the police and the Crown, and should be made aware of the support services available to him or her, including the Victim and Witness Service programs offered by the Ministry of the Attorney General. As well, the accused may request the complainant’s cooperation in seeking a variation to his or her bail terms or a reduced sentence. Family law counsel for the complainant should avoid entertaining any such requests from the accused or counsel on his or her behalf. Rule 4.01(2)(1) of the Rules of Professional Conduct prohibit counsel representing a complainant or potential complainant from attempting “to gain a benefit for the complainant by threatening the laying of a criminal charge or by offering to seek or procure the withdrawal of a criminal charge”. Family counsel should refrain from discussing the specifics of the criminal court action and allow it to run its course so that the accused is permitted to present his or her defence without interference. The complainant should deal directly with the police and the Crown regarding an accused’s request to vary the bail terms.
B. Representing the Accused
After the accused has been charged, his or her position in the family court action may be weakened. The accused may have been ousted from his or her home, and may not be permitted to see his or her children in light of the interim release terms. He or she may effectively be treated as guilty in the family court action where the Court is mandated to act in the best interests of children. A criminal conviction will have severe consequences for the accused, and must be taken seriously. His or her liberties may be restricted, travel privileges restricted and his or her livelihood negatively affected. It is imperative that family counsel work with criminal counsel to ensure that the accused is afforded a vigorous defence to the charges.
The Crown will likely seek strict bail conditions against the accused, which are often imposed by the Criminal Court. The conditions may include but not be limited to prohibitions against contact with his or her spouse, prohibitions against attending at the matrimonial home and prohibitions against exercising access to the children. The accused should be advised early on to fully comply with bail terms and avoid all contact with the complainant so that there can be no allegations that he or she has breached the bail conditions.
Family counsel should request that the accused’s defence counsel attempt to include as much flexibility as possible into the bail conditions so that the terms of the recognizance do not conflict with orders made in family court. If bail terms have already been set, criminal counsel should be asked to seek a variation of those terms. In particular, the criminal law counsel should request that the conditions relating to access to the children state, “other than as provided by order of the family law court”. Without this term, the accused will have to enter into a consent with his or her spouse or obtain a court order from the family court and then return to the criminal court to amend/vary the bail conditions. This added layer to the process will cause delay and increase costs. Ensuring that the above condition is in place at the outset will allow family counsel the ability to obtain orders for access without the need to change the bail conditions at a later date, which may or may not be agreed to by the Crown.
When representing the accused, family counsel should consider the following regarding the bail conditions before taking steps in the family law matter:
(i) Do the conditions preclude any contact between the parties?
The conditions may prevent direct and indirect contact between the accused and the complainant. That condition may prevent four way settlement meetings from taking place. Mediations or arbitrations may need to be halted until after the terms can be varied. Family counsel should request that the criminal counsel ensures that an exception is included permitting communication between counsel or in the presence of counsel. If children are involved, the bail conditions should state that there be no indirect contact except through counsel or a designated third party for the purposes of arranging access.
(ii) If children are involved, do the conditions prevent access?
Standard bail conditions may result in minimal or no access to the children until an order for access in family court is obtained. It is imperative that access to the children be re-established immediately to avoid a status quo from being created that will likely outlast the disposition in the criminal court proceeding and could have drastic consequences on the outstanding custody and access issues in family court. Family counsel should work with criminal counsel to ensure that the recognizance permits access to the children in accordance with a family court order.
Family counsel should seek direction from the criminal counsel in determining whether a custody and access assessment that is underway should be suspended pending an adjudication of the criminal court action. One party may be placed at a significant disadvantage if he or she is unable to contact the children during the assessment process.
Family counsel should identify third parties to supervise access, if necessary, or facilitate access pick up and drop offs to avoid contact between the parties. Typically, family members, the accused’s surety or someone from the parties’ religious community are proposed as access facilitators. As well, counsel should enquire into the services offered by supervised access centres, such as Access for Parents and Children in Ontario (APCO) where the exchanges may take place on an interim basis. Lengthy waiting periods and costs associated with these services reduce their value for many litigants.
The access terms should be subject to variation so that subsequent temporary access arrangements can be agreed upon between the parties. If supervised access is required by the bail conditions or ordered by the Court, counsel should request that the access supervisor provide reports of the visits for use in family court. Counsel should determine whether a CLRA non-removal order should be obtained if there is a risk the complainant may flee during this interim stage.
(iii) Do the conditions preclude the accused party from entering at the matrimonial home?
Bail conditions should provide that the accused is afforded an opportunity to re-attend at the matrimonial home with police escort to collect his or her personal belongings and financial documentation at the earliest possible date. An accused will be placed at a significant disadvantage if his or her financial documentation stored in the matrimonial home goes ‘missing’ after charges are laid and access to the home is denied. Counsel should consider bringing on a motion for a preservation order if there is a risk that the party may dissipate assets, and an Order that the party deliver up the accused’s personal belongings and documents. The bail order should permit the accused to attend at the matrimonial home for the purposes of picking up/dropping off the children if child safety is not an issue.
(iv) Do the bail conditions prohibit the accused from attending within a specified distance of the complainant and/or the children?
A condition prohibiting the accused from attending within a certain distance from the children may be imposed. An exception should be sought permitting the accused to attend at the children’s daycare, school, or extracurricular activities where there is no concern that the children are at risk.
4. Temporary Orders
Bail conditions will have a significant impact on the family court action. Counsel must immediately address the issue in light of the significance of the criminal proceedings on any existing temporary family court orders. Delay may have a long term if not permanent detrimental impact on an accused party. The Family Court will proceed with caution in light of the unsubstantiated criminal allegations. The accused’s ability to present a case relating to the custody and access issues pending the adjudication of the criminal court proceeding will be hindered by the outstanding charges. The interim decisions relating to custody and access will heavily depend on the existing status quo, which the Court will not disturb in the absence of a compelling reason, and the nature of the allegations.
In Kimpton v. Kimpton,10 Justice Wright set out the “golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not be disturbed pendente lite, unless there is a compelling reason why in the interests of children, the parent having de facto custody should be deprived thereof.” The safety and best interests of the children are of primary importance on an interim motion. After the accused is released on a recognizance, family law counsel and criminal law counsel should consider whether the accused should be enrolling in treatment programs or anger management programs. However, while the programs may assist in the sentencing aspect of the criminal matter, disclosure relating to these programs is compellable by the complainant, and could impact on the outstanding access issues.
5. Family Court Affidavits of the Accused
Family counsel must take great care in preparing court documents in the family court action when his or her client is faced with a pending criminal court action. Affidavits prepared for family court may be used in the criminal proceeding to impugn the client’s credibility. Family counsel should obtain copies of the police reports and notes from the scene of the alleged incident. Any inconsistencies in the evidence filed in the family court will be used against that party in the criminal court proceeding. A useful practice is to distribute a draft of the unsworn affidavit to criminal counsel before having your client sign it.
6. The Case Law
A. Improperly Using Bail Conditions to Gain the Upper Hand
In Shaw v. Shaw11 , Justice Pugsley of the Ontario Court of Justice highlighted the problems created when the criminal court proceeding pre-empts the issues being determined in the family court proceeding. His Honour confirmed that family courts decide custody and access based on the governing family legislation and case law, and in reference to the best interests of the child. The criminal justice system does not take into account the best interests of the child because it is not designed nor mandated to do so.
In Shaw, the parties were married for seven years and had two children who were ages six and three years at the time the matter. While at a social function, the mother allegedly hit the father. The children were not present. Notwithstanding the alleged assault, the parties continued to reside together. As a result of tracking her email communications, the father found an email from the mother, denigrating him, and referencing solving her matrimonial problems with a gun, if she could only get one. . Nevertheless, he went to the local police to tell them of the mother's threat, and of the assault, a month earlier.
Apparently the father asked the police not to lay any charges, but then met with his lawyer, who told him to have his wife charged. The father then returned to the police and asked them to charge the wife, which the police did. The mother was arrested, charged with assault, and detained in custody for a bail hearing the next day. The bail conditions included residing with a surety and abiding by curfew, effectively restricting the mother's access to the child and the matrimonial home. The day following the mother's arrest, the father brought a without notice motion in the Ontario Court of Justice and was granted residential care of the children with immediate and generous access to the mother. The Court ordered a review of the order in one week. In the week intervening between the order and the review, the father permitted the mother only one-half hour visit with the children. At the review hearing, the father brought application for interim custody.
Noting that the assault charge involved “what was in effect a one-punch bar fight over a month before, where her target was her spouse,” Justice Pugsley stated that the case “illustrates the danger of speedy or discretionless criminal procedure.” Terming the mother’s story “commonplace,” his Honour noted, "the events after the arrest of the mother, do not, in retrospect, show the Police, the Crown, Counsel or the criminal judicial system in a good light".
Justice Pugsley wrote the following about the mother’s detention:
“Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.”
Justice Pugsley highlights in Shaw the serious problem of litigants misusing the criminal process to gain an upper hand in the court action in order to bolster his or her claims. An accused spouse is invariably barred from his or her home and prevented from exercising custody of, or access to, the parties’ children, without any consideration of the factors a family court must apply in determining custody or access.
The father took full advantage of the situation created by the mother’s bail conditions. He moved without notice the day after the mother’s arrest, relying on the allegations that led to her arrest and her subsequent bail conditions in obtaining an ex parte order for custody of the children, restricted access, and exclusive possession of the home. The criminal system (based solely on unproven and historic allegations) effectively gave the father custody, restricted access to the mother, and gave the father exclusive possession of the matrimonial home. The father’s motion returned before Justice Pugsley as a review of the ex parte Order.
The mother was a 40-year-old with no criminal history. She was required to have a surety in the amount of $5,000 and bound over by the Court on terms that effectively gave the father instant custody of the two young children and restricted the mother's access notwithstanding that the evidence was clear she had been the children’s primary caregiver and that the parties had raised the children together. Justice Pugsley found that the provisions of the mother’s bail violated the intention of bail reform legislation introduced 35 years ago12 . His Honour was critical of the actions undertaken by the police and the Crown. Justice Pugsley wrote the following:
It is hard to contemplate any understanding by the police, or later the presiding Crown, as to the meaning and intent of the bail reform measures introduced some thirty-five years ago. The presumption, as I understand it, that the lowest form of available release appropriate to the charge and the defendant should be applied -- on a range from a promise to appeal to a full-blown bail hearing. There is nothing on the record that I have seen in the family law proceeding (including the father's affidavits and the exhibits attached thereto) that would have prevented the release of Ms. Shaw from the station house at the highest by the officer in charge on an undertaking with terms.
At the return of the father’s motion, Justice Pugsley vacated the ex parte order. He carefully examined the evidence before the Court, and was not influenced by the pending criminal court proceedings. In most cases, however, interim custody and exclusive possession is granted at the outset, and it is months before the matter can be fully addressed by the family court based on a full exposition of the evidence. By that time, a status quo has been created and it may be too late to reverse the damage created by the initial steps taken in the action.
Justice Pugsley considered the status quo before the criminal charges were laid, and he attempted to restore it by ordering a shared parenting arrangement where both parties had equal time with the children. He refused to make an interim custody order and instead perpetuated the status quo, in which the children were being raised jointly by the parents together prior to the criminal charges being laid. His Honour was fully cognizant of the fact that a joint custodial arrangement would not work given that communication between the parties was precluded by the terms of the mother’s recognizance. Justice Pugsley based his decision on the evidence of the way in which the parties had parented before the criminal charges were laid.
His Honour wrote the following about the inherent problems associated with the interaction between the criminal and family court systems:
…These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact…
…I observe, however, that the damage of which I speak is not from the laying of the charge -- this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.
Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system -- from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency -- effect the lives of the members of the defendant's family.
Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit… Ms. Shaw's case illustrates the dangers of speedy or discretionless criminal procedure.
By not making a custody order, Justice Pugsley recognized that the pending criminal court action should not dictate the outcome of the family court proceeding, and should not be used to establish a status quo or the basis for an interim custody order.
Justice Pugsley also cautioned family counsel against advising clients to use criminal court processes to achieve objectives that are beyond their reach in family court, such as custody of the parties’ children or possession of the matrimonial home. His Honour wrote that although he did not know what advice the unnamed lawyer had given the father in advising him to have the mother charged, “I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.”
In Andres v. Andres13 , the wife attempted to abuse the terms of the husband’s recognizance to bolter her claims in the family litigation. The parties were involved in an altercation while residing separate and apart in the matrimonial home. Each alleged physical assault by the other party, and charges were laid against the husband. The terms of the husband’s recognizance included no contact with the wife or her parents. During a court ordered access exchange, the wife hid in the vehicle carrying the children in an attempt to have the husband charged for breaching his conditions. The police declined to lay charges against the husband in the circumstances. The wife then obtained a non contact order against the husband on an ex parte motion on the basis of an alleged incident during the access exchange. Over the next two months, the wife reported to the police allegations of breach to the police, some resulting in further charges being laid and trial dates set. The husband was subsequently found not guilty of assaulting the wife.
At the return of the wife’s ex parte motion, the Court reprimanded the wife, revoking the non-contact Order and ordering in its place a mutual restraining order prohibiting the parties from contacting each other or attending within 10 metres of one another. The wife failed to meet the threshold of urgency as the husband was unaware of her location at the time of the alleged incident and she was protected by the bail conditions issued in criminal court. The Court found that the restraining order would stigmatize the husband, and exercised its inherent jurisdiction to issue a mutual restraining order to place the parties on equal footing in the action.
B. Changes to the Zero Tolerance Policy?
The police routinely detain suspects in domestic cases for bail hearings after they are charged. The zero tolerance policy imposed by the Attorney General years ago can have drastic consequences for a family in conflict. An innocent party may be ousted from his or her home with devastating consequences for the children. The police are advised to arrest a party where there are reasonable and probable grounds to do so, and allow the court process to run its course. A party who is arrested after a single complaint of assault is left with two choices – enter into recognizance which will likely oust him or her from the matrimonial home and restrict access to the children until further court order, or remain incarcerated while waiting for a bail hearing which will likely result in the same interim release conditions.
The zero tolerance policy flows from the Ontario Crown Policy Manual, which states that whether or not a complainant agrees, “all such assaults shall be prosecuted with vigour.” We submit that the policy should be revisited at this time in light of the growing concerns relating to the interplay between the criminal law and family law courts. In the recent decision of R. v. Rashid14 , Justice Sosna decried the policy of automatic detention for individuals charged with domestic violence. In R. v. Rashid, the accused (appellant) was charged with assaulting his wife and son. He surrendered himself to the Durham Regional Police and was arrested. He was held in custody due to an “unofficial police practice detaining all accused charged with domestic for the purposes of a bail hearing.” He was transferred to bail court the next day and released on a consent bail order.
The officer in charge, Constable Richardson, testified that there was a ‘strict policy to detain all individuals charged with domestic violence and hold them in custody for a bail hearing’. She testified that although there was no written or formal policy as such, there was an informal understanding throughout the Durham Regional Police Services that in any case of domestic violence, the accused should be held for a bail hearing. This informal policy is shared among officers and in her terminology, “was done from high up.”
At trial, the appellant sought a stay of proceedings submitting that his section 9 Charter rights were violated. At trial, the trial justice found that the accused’s section 9 Charter protection was breached due to the unwritten policy of automatic detention of those charged with domestic violence. The trial justice stated: “I also consider s. 9 to have been breached by virtue of Officer Richardson’s relying on the unwritten policy to detain all individuals charged with domestic violence for a bail hearing.”
As a result of the unwritten policy, the trial justice concluded that: “…Officer Richardson never gave at the time consideration to the factors in s. 498 (1.1) of the Criminal Code either personally or through an Officer in Charge to form any personal, subjective belief that Mr. Rashid’s detention was necessary.” The trial justice accepted the evidence given by Officer Richardson regarding the practice of routine detention of those accused with domestic violence, and concluded that this practice systemically undermined the statutory requirements set out in section 498. As a result, the trial justice found that the accused suffered “an unauthorized and arbitrary punishment” because of the failure of the police authorities to implement the procedures of section 498 and 503 of the Criminal Code, and the protections of section 9 of the Charter. The trial justice granted the accused pre-trial credit in lieu of a stay of proceedings. The accused appealed from that decision.
In the appeal court decision, Justice Sosna wrote that the “unofficial practice/policy of detaining those charged with domestic violence without regard to the provisions of the Criminal Code and Charter is a matter of public record, criticized and disapproved of by the trial justice. The remedy granted and the denunciation of the aforementioned detention practice properly addresses the seriousness of the breach, the prejudice to the accused, and the public interest, in order that unwarranted detention of those accused of domestic violence not be perpetuated.” His Honour dismissed the appeal and found that the discretion exercised in granting enhanced credit for pre-trial custody in lieu of a stay of proceedings did not amount to an error or to an injustice which requires any intervention.
However, Justice Sosna made clear his disapproval of the mandatory detention policy. He strongly urged in his decision that the policy of routine detention of those charged with domestic violence be immediately terminated. Criminal courts lack the resources and the specialization to deal with cases of domestic violence in such summary fashion. Justice Sosna’s decision is applauded and hopefully leads to reform in this area.
C. Is Parental Conduct Determinative?
Section 24(4)(a) of the Children’s Law Reform Act provides that court shall consider whether a party has committed violence or abuse against his or her spouse in assessing that person’s ability to parent. In MacNeil v. Playford15 the Court addressed the impact of domestic violence on custodial arrangements. In that case, the father had been convicted of assaulting the mother. The mother argued that the assault conviction was virtually determinative of the interim parenting arrangements. The father argued that the assault was not determinative and that it was a one time infraction that he deeply regretted having occurred. He argued that the assault should not affect the interim parenting arrangements.
The Court found that the father was the primary caregiver of the children both before and after the parties’ separation until June 2008 when the mother received the father’s court application. At that time, she unilaterally changed the status quo and denied the father access. Earlier, before the separation in November 2007, the mother and her associates had provoked an incident at an access exchange which resulted in criminal charges being laid against the father.
Justice T.M. Forgeron found that the domestic violence issues impacted upon the interim custodial determination, and that both parties had anger management and impulse control problems. The Court found that the mother’s conduct exceeded the father’s wrongdoing. In the end, the Court maintained the status quo which existed before the unilateral actions taken by the mother. The Court ordered sole custody and primary residence to the father given that a joint custodial arrangement would not work given the parties’ inability to communicate.
In Dearden v. Dearden16 , Justice Pugsley made clear the kind of conduct that does not play a role in the determination of a custody dispute. In Dearden, the parties lived separate and apart in the matrimonial home until the mother was arrested and charged with assaulting the father. The terms of her recognizance precluded her from attending at the matrimonial home, and impacted on her ability contact her children. From the time of her charge in October 2008 until January 2009, the children lived with their father in the matrimonial home and had regular access with their mother. The mother took no steps to address the family law issues relating to the bail conditions. In January 2009, the charges were withdrawn and the mother moved back into the matrimonial home. However, there was a further altercation and the parties separated on January 20, 2009 when the mother removed the children from the home and moved into a women’s shelter.
Justice Pugsley noted that there were detailed and conflicting allegations of improper conduct made by both parties, which were untested by cross-examination and bore little on his task on the interim motion, brought at a very early stage of the proceeding. His Honour made clear that conduct, save as it bears upon the care of the children is ‘irrelevant to my determination of temporary custody and access’. His Honour wrote the following:
The material relied upon by the respondent father contains not only statements of fact but also attempts to use the applicant's past non-child related conduct to denigrate her character and enhance the respondent's request for custody. Thus, the Court is told about the applicant's past marital infidelities, her past career as a stripper, her salacious photos on Facebook, and so on...Suffice it to say that, until two weeks ago, neither party felt it improper that the other care for the children, alone, from time to time.
Justice Pugsley stated that the court’s duty at the interim stage is to determine in the short term where the children should reside in their best interests, and to provide stability for the children in an unstable time. In the end, Justice Pugsley ordered shared parenting, rotating the children between the matrimonial home and the wife's temporary residence.
In C. (A.J.) v. C. (R.)17 , the father applied to vary a custody order, in place years earlier awarding sole custody to the mother, to award him custody of the child. However, he was facing criminal charges arising out of the domestic dispute, which prohibited contact, with the child, and the judge who earlier awarded custody of the child to the mother had referred to the father as, "demeaning, domineering, and manipulative." The mother, however, had entered into a voluntary care agreement with the Society in light of the child’s behavioural issues. The child had run away before and threatened to do so again if she was not allowed to live with her father. In fact, she sent her mother a letter advising her of this in October 2002 while she was a "runaway." The father was charged with parental abduction arising out of this incident and was prohibited by bail terms from having contact with the child. The father's counsel would not allow the father to comment on the charges or the incident in the family court action.
The child’s counsel opined that the child's only chance of developing into a psychologically healthy adult was if she had no contact with the father, and described the father-daughter relationship as "unhealthy." However, Justice Bennett relied on the opinion of a court appointed expert and decided that it was in the child’s best interests to reside with the father. The child was old enough (11 years of age) and set enough in her ways that the only practical solution was to grant custody to father, assuming he could get his bail conditions changed to allow him contact with the child. The Court had considerable concern about the pending criminal charges and in fact delayed in giving reasons in the hope that the charges would be quickly resolved. However, the Court concluded that it was unfair to the child to delay the reasons as the criminal matter was many months away from resolution. In awarding custody to the father, the Court held that the issue is what is in the best interests of the child, and not about punishing or rewarding the father for his conduct.
D. Crafting Orders to Avoid Breaches of Bail Conditions
The Court must ensure that court orders made in the family law action do not breach or invite breaches of the accused’s bail conditions. In Litzen v. Dorsey18 , the Court took special care in making an Order that did not breach the father’s recognizance. In the case, the father was charged with assault the day after an access pick up. A third party facilitated the subsequent access exchanges in light of his bail conditions. As well, the father could not telephone his children as a result of the no contact terms of his recognizance. The mother improperly attempted to use the conditions to restrict the father’s relationship with the children. Justice C. Lafreniere recognized that the mother was using the conditions to gain an upper hand in the litigation, and found that she was not supporting the father’s relationship with the children. The Court ordered that the mother may not attend at any of the children’s activities during the father’s time as she was not promoting their relationship with the father. As well, the Court ordered the mother to facilitate telephone access by assisting the children in telephoning their father in light of the bail conditions. The Court also accepted the father’s counsel’s submission that the use of a communication book or communication through email, both requested by the mother, would violate the terms of the father’s recognizance.
7. CONCLUSION
Domestic violence and criminal charges are an inevitable part of family law. Outstanding criminal charges present significant challenges for counsel, the client and the Court. Allegations of assault or uttering threats can turn a straightforward family law case into a complex, protracted and tumultuous affair.
It is imperative in these cases that the issues be dealt with on an urgent basis so that balance can be restored to a family in crisis. Family counsel is obligated to take all steps necessary to ensure that his or her client’s safety and the safety of the children are protected. Rarely will all the evidence be before the Court at the initial stage of the litigation. Counsel and the Court must be vigilant so that interim arrangements are put in place that protect victims of domestic violence. However, it is also necessary for family counsel to be sensitive to the issue of false or exaggerated claims of family violence and misuse of the criminal justice system to prevent one party from inappropriately gaining an upper hand in the family litigation, to the disadvantage of the other party and the children.
Justice Pugsley’s decision in Shaw v. Shaw eloquently highlights the problems created when the family court system and the criminal court system collide. The criminal justice system needs to revisit its procedures and policies on combating domestic violence that effectively requires the police and the Crown to prosecute any spouse alleged to have engaged in domestic violence. Domestic violence is by nature serious and must be addressed vigorously and expeditiously. It is strongly urged that the policy of automatic detention of those individuals charged with domestic violence be changed so that the Crown and the police have the discretion to deal with domestic violence cases based on the particular circumstances of each case. Further, conditions of bail should be no more restrictive than needed to protect victims, and should be set taking the interests of children into account. As well, the family court system must recognize high conflict cases from the outset and provide for adjudication of immediate crises so that the outstanding issues may be determined in the normal course based on a full exposition of the evidence. In the end, the criminal court system and the family court system must work together in cases involving conflict and criminal allegations to ensure that justice prevails. Perhaps it is time to have high conflict cases involving allegations of domestic violence identified and streamed to a specialized Court for adjudication.
1 The courts have, however, refused to continue a status quo created by the unilateral actions of one litigant without the knowledge, acquiescence or consent of the other. See LiSanti v. LiSanti 1990 CarswellOnt 219 (Ont.P.C.); Hsu v. Liu 1999 CarswellOnt 2651 (S.C.J.); J.(D.L.) v. L.(D.J.), 2009 CarswellPEI 9 (C.A.).
2 Rule 2(4) of the Family Law Rules provides that the Court shall promote the primary objective of dealing with cases justly by active management of cases.
3 For further discussion, see P. Epstein’s Annotation to Shaw v. Shaw 2008 CarswellOnt 1626 (Ont. C.J.)
4 Chang v. Colligan 2007 CanLii 54664 (Ont.Div.Ct.); Taglienti v. Rodriguez 2006 CarswellOnt 2796 (Ont.C.J.); Penney v. Penney 2006 CarswellOnt 7605 (Ont.S.C.J.)
5 For further discussion, see S. Boulby, Temporary Orders in Light of Criminal Allegations, Crime in the Family: Navigating the Intersection between Criminal and Family Law Part I – Family Law Focus
6 Kutlesa v. Kutlesa 2008 CanLii 13187 (O.S.J.)
7 Hill v. Hill [1987] O.J. No.2297 (Ont.Dis.Ct.); In Hill v. Hill, the Court stated that exposure to verbal abuse may constitute violence if the conduct impinges on the victim’s mental and physical health.
8 For further discussion, see R. Halpern, J. Wilson & E. L. Nakonechny, What To Do in the Immediate Aftermath of an Incident of Domestic Violence, Crime in the Family: Navigating the Intersection between Criminal and Family Law Part I: Family Law Focus.
9 T (L.) v T.(D.L.) 1996 CarswellOnt 4287 (Ont. C.J.)
10 Kimpton v. Kimpton 2002 CarswellOnt 5030 (S.C.J.)
11 2008 CarswellOnt 1626 (Ont. C.J.)
12 Bail Reform Act, S.C. 1970-71-72, c.37. A panel of experts was convened by then Attorney General Roy McMurtry to examine domestic violence. The panel’s recommendations included that neither the police nor the Crown exercise any discretion in cases of domestic violence – that where there were reasonable and probable grounds to lay charges, those charges be laid and pursued.
13 2009 CarswellAlta 69 (Alta Q.B.)
14 2009 CanLii 9745 (Ont.S.C.J.)
15 2008 CarswellNS 457 (N.S.S.C.)
16 2009 CarswellOnt 1274 (Ont.C.J.)
17 C. (A.J.) v. C. (R.) 2003 CarswellBC 1172 (B.C.S.C.)
18 2008 CarswellOnt 2491 (Ont.S.C.J.)