Criminal Charges in Family Law Cases

A divorce can already be emotionally challenging enough, without the issue of criminal complications. But many family law cases often involve criminal charges that emerge from domestic relationships.

Marg Bruinman of The Law Times recently investigated this issue, including concern over abuse of criminal charges to advance a family law claim,

In family litigation, a criminal charge is like a red flag even when the case is still before the court. Additionally, the introduction of the criminal process can throw a wrench into any friendly resolution of the matter.

Immediately, the accused leaves the home and can’t communicate with the spouse and the children or come within a certain distance of the house. That makes the issues of custody and access more difficult.

As a result, according to lawyers, the spouse making the allegation has an edge in the case. With exclusive access, the children themselves could become pawns in the case.

Delays in the criminal system complicate the situation as the charge can easily loom for a year.

Bruinman interviewed several lawyers who acknowledge the gravity of legitimate cases, but  also raise concerns over fabricated allegations, because police must lay charges when a complaint is made.

The new Integrated Domestic Violence (IDV) court was opened in Courtroom 10 at 311 Jarvis St. in Toronto on June 10, 2011 to address some of the overlapping issues in family and criminal law to allow hearings on both matters to be heard on the same day by the same judge.

Justice Geraldine Waldman has explained the goals of the new pilot project:

  1. Better informed judicial decision making:  The judge will have more comprehensive and current information concerning all of the issues involving the family.  This will support the judge in more fully understanding the family, its ongoing needs and the progress each member has made. The judge, for example, will be able to more fully evaluate safety concerns, compliance with orders, and progress in parenting concerns relating to access.
  2. Elimination of conflicting orders:  Conflicting court orders create confusion which can impact on compliance by litigants and enforcement by authorities. The existence of conflicting orders undermines litigant’s confidence in the system.  Elimination of conflicting orders promotes safety by eliminating confusion, makes the expectations of the court clear to all participants and consequently supports compliance.
  3. Consistent handling of multiple matters relating to a single family by judges who are knowledgeable in the area of domestic violence:  Single judge case management has proven to be an effective tool in resolving family litigation.  The judge develops an understanding of the case and the litigants and can support them in moving through the litigation with appropriate orders and expectations.  Judges with expertise in both family and criminal law and in the specific issues relating to domestic violence have the ability to better understand the needs of the litigants and to direct the litigation in a manner that is appropriate for the specific concerns of the community.
  4. Connection to social services and other community resources:  The addition of a community resource coordinator will allow the court to develop and maintain a connection to community resources and to connect the families to resources appropriate to its needs.  This will allow for a more comprehensive and expeditious response to the issues facing various family members, will allow for monitoring of progress which will support the court in appropriate decision making and will potentially expedite resolution.
  5. Promote efficiencies for both the system and the family by reducing the number of appearances in court and trips to court:  Litigants will only have to attend one court location.  The coordination of appearances will reduce the number of attendances.  Consolidation of resources and monitoring will also add to efficiencies that will benefit both the family and the justice system.
  6. Develop expertise within the court and create services and resources designed specifically for the unique needs of the client base:  Because this court will be focused on the issues which are a consequence of domestic violence, it can focus its resources and develop specific expertise.

Litigants in the IDV Court are required to read a fact sheet and speak to a lawyer before signing a mandatory consent form. More information about the IDV Court can found on the Ontario Court Services website.

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