Abuse law blasted

Philip Epstein, a well-respected family law expert who helped draft Ontario's so-called "duty to report" policy on domestic violence 30 years ago, now says it needs a review and better use of discretion. (Jan. 9, 2008)
Authorities 'overreact' as warring couples use zero-tolerance rule to gain upper hand, lawyer says
Aug 28, 2009 04:30 AM
Be the first to comment on this article...
Susan Pigg
Living Reporter

Ontario's "zero tolerance" policy on domestic violence has come into question following an unusual court case involving an Orangeville-area woman who was charged with assault after joking in emails that she could solve her marital problems with a gun, if only she could get one.

Alison Shaw, 40, was forced out of her home and ordered to stay away from her three children after her estranged husband claimed to have been "frightened" by the online missive, which followed what a judge described as a "one-punch bar fight" over a month earlier in an area Legion hall.

The ruling is unusual on two fronts:

It's a twist on what men's rights groups claim divorcing fathers have been suffering for years at the hands of police and the criminal court system. And it's creating buzz in legal circles because a well-respected family law expert who helped draft Ontario's so-called "duty to report" policy 30 years ago now says it needs a review and better use of discretion.

"This is a gross overreaction by the Crown and by the police in response to what they thought is the zero-tolerance rule," says Philip Epstein, a veteran divorce lawyer who sat on the committee that crafted the 1979 directive.

"We know so much more about domestic abuse now than we did back then. It's time to re-examine the policy and create some limited discretion for the police and Crown attorneys to deal with this problem," he said.

Criticism of Shaw's treatment first arose more than a year ago in a family law decision from Ontario Court Justice Bruce Pugsley, who said it's "commonplace" for the criminal justice system to be manipulated by estranged spouses claiming abuse, "no matter how remote the assault may be in time or, indeed, how trivial the contact."

Epstein has highlighted the decision and his concerns in the recently released Reports of Family Law, a critique of interesting or unusual family law judgments. He and other lawyers have praised Pugsley as being the first judge to so clearly tackle the thorny issue of how some warring couples use the criminal courts to get custody of their children and gain the upper hand in divorce cases.

The way such allegations are handled by police and Crown attorneys can have "the disruptive force of a hand grenade" for families, Pugsley said, setting in motion a chain of events that can wreak "havoc" on children.

Shaw's treatment was fairly typical: She had no criminal record, was charged and held in jail overnight until she could post $5,000 bail, and ordered to stay away from her home and kids "without any regard for children's best interests," the judge said. Her bail conditions also restricted her from using the Internet.

"This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada," said Pugsley, a point Epstein also stresses. But "the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light."

Shaw and her husband, Stephen, were estranged, but still living in the same house, when he hacked into her computer in late 2007 looking for evidence of an affair. Instead, he found what Pugsley described as "vile language" and "gossipy joking" in an email to a girlfriend that talked about "solving her matrimonial problems with a gun, if she could only get one."

The husband reported them to police, as well as an incident over a month earlier in a bar in which she is alleged to have punched him. He returned to ask police to lay a charge of assault after meeting with a lawyer.

"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," Pugsley said in his ruling.

While Epstein says false or trumped-up allegations are rare, and domestic abuse remains a "very, very serious and real issue," they can unfairly cripple an accused legally and financially because Ontario's court system is so slow and overburdened.

He added the legal aid system is so cash-strapped, it can take eight months to a year for a criminal case to be decided.

During much of that time, the parent has no access to their children. (Pugsley moved quickly to give Shaw 50/50 access to her kids on alternating weeks.)

Epstein had one case where a wife alleged abuse and then started clearing valuables out of the house while her husband awaited a bail hearing. Some men have started fighting back, says one lawyer whose female client is being threatened with a $250,000 wrongful prosecution suit by her ex-husband.

Domestic violence experts such as University of Western Ontario professor Peter Jaffe says the research is clear on what constitutes domestic abuse, but more training of police and Crown attorneys is needed. In fact, they point to what they consider a far more worrisome trend: Police who are simply throwing up their hands, charging both partners, and leaving it up to judges to sort it all out.

"The number-one problem in 2009 isn't minor allegations that are blown out of proportion or the potential for false allegations. The number-one problem in Ontario in 2009 is that there are still 30 to 35 domestic homicides a year and that so many people are being abused and not seeking help," says Jaffe.




Domestic Violence is Gender Neutral

Too often, accusations of domestic violence are used to gain the upper hand in divorce court. Most often, these accusations are made by women, but it only becomes media worthy on the rare occaision that a woman is accused. GOVERNMENT OF CANADA http://www.phac-aspc.gc.ca/ncfv-cnivf/familyviolence/pdfs/Intimate_Partner.pdf Statistics Canada reports that "ALMOST EQUAL PROPORTIONS OF MEN AND WOMEN (7% and 8% respectively) had been the victims of intimate partner physical and psychological abuse (18% and 19% respectively). These findings were consistent with several earlier studies which reported equal rates of abuse by women and men in intimate relationships"


Peter Jaffe has played a large part, be it as "double agent of justice" in increasing Ontario's War On Men by promoting feminist doctrines that have been adopted wholus bolus by Ontario Courts and police. The solution is a legal presumption of equal parenting after separation and, a Judicial Police to deal with the underbelly of the Judiciary who have the empathy of Cartel assassins. Check out Peter Roscoe's research at ottawamenscentre


"Zero Tolerance" is aka, "the war on Men", is Ontario's Law of Gender Apartheid. ALL ILLEGAL but "justified". Ontario Courts are swamped by criminal proceedings that generally have no hope of a "Genuine" conviction yet, dubious convictions are made to give "a win" to a mother for custody and access purposes. Most DV charges are laid to terminate children's relationships with their father and no doubt in some cases with mothers but those cases are small by comparison. The real criminals are the family court judges who flagrantly abuse their powers to "justify their decision" with the first or nearest fictitious story presented to them or suggested to them. The same judges then issue massive orders for costs to forever prevent the father from coming to court again. The Legal Cartel's Judicial representatives want all to pay a lawyer or get crucified as a self rep. Our corrupt courts have more in common with Casino's with high minimum bets with the odds all stacked on Gender.


Been there...Done that

My ex wife sucker punched me, i YELL at her while my nose is pouring like a tap, NEVER touched her as i am holding cold cloth on my face to stop bleeding , she calls police, i am arrested ( i have zero record not even a traffic ticket to my name), police admit this was the easiest way to deal with the situation by ONLY charging ME, $4,000 for lawyer, 5 months away from house and kids, family services investigates wife and I they declare she has anger management issue, charges dropped by crown in first court hearing. Result: 12 year marriage flushed. Police discretion was certainly not apllied properly. Menatlly i suffered HUGE...i really didn't care about the money i felt like a loser and criminal. Thank you Ontario.