Winning family battles in criminal court
  By Thomas Claridge
May 23 2008


Click here to see full sized version.

Family law practitioners have welcomed an Ontario Court judge’s criticism of a provincial policy on combatting domestic violence that effectively requires police and Crown lawyers to prosecute any spouse alleged to have engaged in domestic violence.

Justice Bruce Pugsley’s criticism came in a case where a 40-year-old woman was arrested and jailed overnight based on her husband’s complaint that she had struck him more than a month earlier at a Valentine’s dance.

Justice Pugsley also cautioned lawyers against advising clients to use criminal court processes to achieve objectives that are beyond their reach in family court, such as custody of the couple’s children or possession of the matrimonial home.

In the judgment, which was critical of both police and the Crown, the judge vacated an ex parte order which Stephen Edward Shaw had obtained after having his wife Alison Shaw arrested for assault. The order gave him exclusive use of the matrimonial home and custody of their children, aged 7 and 2.

Justice Pugsley said that although the alleged assault occurred at the dance on Feb. 9, the husband did not ask police to charge her until March 11, after surreptitiously viewing his wife’s e-mail and going to a lawyer who he said told him to have his wife charged. She was arrested, held overnight, and released on $5,000 bail only after being bound by the order, which Justice Pugsley said “effectively granted exclusive possession of the couple’s matrimonial home to the father. Further, Ms. Shaw, a 40-year-old adult with no prior criminal history, was required to reside with her surety and be amenable to the rules and discipline of the home; to abide by a curfew; and not to access the Internet.”

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,” he said the case “illustrates the danger of speedy or discretionless criminal procedure.”

Terming the wife’s story “commonplace,” Justice Pugsley said it did not show “the police, the Crown, counsel or the criminal judicial system in a good light.”

Based in Orangeville where he handles both criminal and family law cases, Justice Pugsley said an accused spouse is invariably barred from his or her home and prevented from exercising custody of, or access to, the couple’s children, without any consideration of the factors a family court must apply in determining custody or access.

“This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada,” the judge wrote. “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.”

However, the criminal court process “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.”

 He said routine orders excluding a party from the common home 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.”

Justice Pugsley said that although he didn’t know what advice the unnamed lawyer had given the husband in advising him to have his wife 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 addition to vacating the ex parte order, he issued a temporary order for joint custody of the children, aged 7 and 2. Under the order the spouses have custody on alternate weeks.
Both counsel at the hearing praised the judge’s reasoning.

The father’s counsel, Brampton lawyer Ross Milliken, told The Lawyers Weekly other family law lawyers have described the judgment as “long overdue.”

He added that although he had asked that his client be given interim custody, the judge’s ruling “seems to be working. The parents have been co-operating and there have been no problems.”

Milliken, whose practice includes both family and criminal law, said he often finds himself representing accused spouses. He had been retained that day by a wife who was arrested “for throwing a telephone at her husband.” But unlike Alison Shaw, she had been released on her own recognizance.

The wife’s counsel, Orangeville lawyer Gillian Shute, took no credit for the judge’s extensive analysis and citing of case law, advising The Lawyers Weekly that the client retained her less than a week before the court hearing. She, too, said such occurrences were commonplace.

She said the client “felt she had no option” but to accept the ex parte order’s terms.

A zero tolerance policy is indicated in the Ontario Crown Policy Manual, which says that whether or not a complainant agrees, “all such assaults shall be prosecuted with vigour.”

A spokesman for Attorney General Chris Bentley denied that the policy amounts to zero tolerance, requiring only that domestic violence be treated “very seriously.”

Brendan Crawley told The Lawyers Weekly the “clear policy direction on handling these cases” includes discretion in the form of Crown vetting.

He said public safety, “including that of the victim,” was the “paramount consideration.”

Reasons: Shaw v. Shaw, [2008] O.J. No. 1111.