Warring couples misuse courts, judge says

Wrong to lay assault charges to win custody of children and force spouse from family home, he warns

From Wednesday's Globe and Mail

An Ontario judge has criticized the criminal-court system for permitting warring spouses to lodge assault charges as part of a strategy aimed at winning custody of their children.

Ontario Court Judge Bruce Pugsley expressed frustration that a spouse can cause family-law havoc, setting in motion a chain of events that force an estranged partner from the family home and subjecting children to "the disruptive force of a hand grenade."

In the case before him, the judge was skeptical about the legitimacy of a bail order issued last month that effectively barred an Orangeville, Ont., woman from her family home and children, based on an allegation that she had punched her husband.

Judge Pugsley revised the bail conditions, granting Alison Shaw 50-50 interim custody of her two-year-old and seven-year-old children on a rotating week-to-week basis.

He said that it is commonplace for the criminal-justice system to be manipulated by estranged spouses who claim to have been assaulted "no matter how remote the assault may be in time or, indeed, how trivial the contact.

"Spouses of every walk of life - and often with completely unblemished prior character - are routinely detained for a formal bail hearing for such assaults," Judge Pugsley said.

Robert Rotenberg, a lawyer who has acted in many similar disputes, said the ruling has been a long time coming.

"This is the judgment I've been waiting 10 years to see," he said in an interview. "I have seen so many people stuck in bail courts needlessly - often for days - and parents who are not able to see their kids because of ridiculous bail conditions. And who suffers most? The children."

Family lawyer Marvin Kurz said the judgment drives home how destructive assault charges and the ensuring bail conditions - usually decided by justices of the peace - can be. "A JP has as much business deciding interim custody of a child as a doctor has diagnosing a patient's spouse," he added.

In the Orangeville case, Stephen Edward Shaw alleged that his wife punched him on Feb. 9, at a local Legion. He initially decided against pressing charges, but changed his mind a month later after seeking legal advice.

"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," Judge Pugsley observed in his ruling.

Ms. Shaw, 40, was jailed overnight and released on strict bail conditions. Her husband was given exclusive possession of the couple's home and "instant custody" of their children, the judge said.

She also was placed under a curfew, prohibited from using the Internet and required to live with her bail surety.

Judge Pugsley noted that Mr. Shaw allowed his wife just 30 minutes with the children in the week following the order, which he said proved that Mr. Shaw was "concerned more with his power over his spouse than the best interests of their two young children."

The judge also remarked that police and prosecutors typically play into the problem by not being more discriminating about when charges are laid and pursued.

"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."

Judge Pugsley stressed that domestic abuse is a genuine scourge that must be taken seriously, but that a uniform policy of instantly separating spouses from their children is not the answer. The parent who lays a charge is placed in a position of "immediate superiority" until the criminal charge is resolved, he said, which can take up to a year.

"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."

Judge Pugsley found several other disturbing aspects to the case, including the fact that Mr. Shaw had installed a device on the family computer to secretly track his wife's e-mail. The judge expressed grave reservations about the invasion of her privacy, and said that Mr. Shaw's actions appeared to suggest a premeditated plan to "set up" his wife.