Domestic Violence: Problems at the Intersection of Criminal Justice and Family Justice
Written By: Clyde Smith and Linda Smith
Our comments are offered irrespective of the guilt or innocence of a person charged with a domestic violence offence and they reflect what we see happening in the cases we deal with in our Eastern Ontario law practice restricted to criminal and family law.
It is important that all family justice practitioners be aware of what happens after criminal charges are laid because these events will affect the whole family—the accused, the complainant and the children.
The rule book for Ontario domestic violence offences is the Crown Policy Manual, which leaves little discretion as to whether or not criminal charges are laid once a 911 call or a domestic complaint is made. Complainants do not “press charges”. They report their allegations to the police and the decision whether to lay a charge is then made by the police. Once the police receive a complaint of domestic violence (DV), be it assault, criminal harassment, uttering threats, mischief, or some combination thereof, the laying of a charge is virtually mandatory.
The accused in a domestic violence case will typically be taken into custody and held overnight for a bail hearing in the Ontario Court of Justice. An accused arrested on a Friday, will likely spend the weekend in jail. While an accused can be released from the police station on a Promise to Appear, the police prefer to leave the release decision to a Crown Attorney. The accused will be taken to bail court at which time the Crown will advise if they are prepared to agree to the accused being released on conditions. If the Crown does not agree, then the matter is scheduled for a contested “show cause hearing” during which evidence is presented by both sides and a presiding Justice of the Peace decides whether the accused should be released or detained. A show cause hearing can usually be scheduled within two to three days if the only issue is availability of court time. If, however, there is difficulty finding someone to act as a surety—a person to keep an eye on the accused and help ensure compliance with bail conditions—then the development of a release plan may take longer. In DV cases, the Crown and the Court usually look to have the accused residing with a surety, which makes for an added challenge.
Release conditions typically include provisions forbidding contact between the accused and the complainant and sometimes the children. Conditions may require the accused to remain away from certain places such as the parties’ home (a defacto interim exclusive possession order) and the children’s school or day care. The usual contact clause regarding the accused and any children will preclude any contact without the written approval of the CAS or a subsequent family court order, and obtaining either always takes time. Obtaining a family court order can also be difficult and expensive creating a significant, if not insurmountable, challenge for many families.
The police will contact the relevant child protection agency to report the charge, and this agency will often investigate and weigh in on the suitability of contact between the accused and the children. This assessment also takes time.
Domestic violence cases are dealt with in specialized sessions of the criminal courts. These courts, together with Ontario’s Justice on Target Initiative, are designed to increase the speed with which these cases move through the system. Unfortunately it can still take between six to twelve months for a matter to reach trial, leaving bail conditions in place for a long time for those accused who do not plead guilty. The initial chain of events happens quickly and then the matter often slows to a snail’s pace.
By virtue of the fact that the complainant and accused are now adverse in interest and experiencing high conflict, the relationship between the accused parent and the child is altered. One byproduct of the criminal charge is that the child of an accused person is often denied the right to a relationship with that parent without there having been a determination as to whether or not that disruption in the relationship is in the child’s best interest. Many months can pass before a child is able to have contact with the accused parent and the longer the parent/child contact is interrupted the more challenging it is to re-establish the relationship.
An ameliorating measure such as mediation may be impossible due to the concern about the imbalance of power or because of the high conflict between the parties. Bail conditions restricting contact may preclude attendance at mediation or family counselling.
Supervised access, either at a supervised access centre or by a neutral third party, is often an option for quick re-integration. In those cases, it is vital that the supervisor be aware of the nature of the charges, why the visits require supervision and any rules applicable to the release conditions and the visits. However, as beneficial as supervised access is as an interim solution, it is generally quite limited in both duration and frequency.
A Family Court application often follows on the heels of the Criminal Court charge. In addition to the problems of such an action often being lengthy and expensive, there is the added complication that the family case and the parallel criminal case have different objectives even if they are driven by the same facts. These two courts are two distinct jurisdictions and two separate processes, which rely on two different standards of evidence. Currently the two courts have little ability to communicate with one another.
Is it possible to deal with DV matters in a safe and family-focused way? Is there a balance between child safety and emotional wellbeing and a child’s right to a relationship with the accused parent?
In Toronto’s Integrated Domestic Violence Court, a single judge of the Ontario Court of Justice can hear cases where there are concurrent criminal and family proceedings. The judge can monitor families over time, addressing legal issues as well as matters of accountability and safety, and the interests of children can be taken into account in both proceedings. Unfortunately, this court has faced some administrative challenges, and has limited scope: It can only deal with family cases where property or divorce are not at issue, since those matters can only be dealt with in the Superior Court, and child protection issues cannot be included (See Birnbaum, Bala & Jaffe, Canadian Journal of Family Law, 2015).
Lanark County in Eastern Ontario has tackled the problem by the introduction of a DV Protocol and Early Resolution Meetings. Its goals include improving communication and reducing conflicting orders between criminal and family court, ensuring restraining order provisions are communicated to and enforced by the police, permitting safe and appropriate visitation between the accused and their children and ensuring that the safety needs of victims of domestic violence are being met. Early Resolution Meetings are informal. All involved, including the parties, the Crown, the criminal lawyer, the family lawyers and, in many cases, the child protection lawyer, meet with a Superior Court Justice to try to resolve, on an interim basis, the issues surrounding a particular family. This is a grass roots bench-and-bar initiative, which is described by one of its founders, Justice K. Pedlar (retired), as ‘light on its feet’ in that it has no regulations, funding, or forms. With the co-operation and participation of all involved, creative interim solutions are explored for each family and they can be implemented on the consent of all parties. In addition to providing better outcomes for the families, Justice Pedlar reports that this collaborative approach has resulted in systemic change by allowing cases in that jurisdiction to be addressed with a minimum of delay and expense.
Linda Smith is an AFCC-O member and a lawyer practising Family and Child Protection Law. Clyde Smith is a lawyer whose practice is restricted to criminal law. They work together at Smith & Company Barristers, Kingston, Ontario.