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Criminal, family lawyers must follow best practice guidelines

While information sharing between family and criminal lawyers is crucial, a “one judge” approach could be problematic, says Toronto family lawyer Jennifer Samara Shuber.

A recent Toronto Star report examined how a lack of information sharing between the family and criminal court systems is “putting domestic violence victims at risk, with deadly consequences.” The issue has been flagged to the provincial government as a serious issue since as early as 2004, says the newspaper.

The Star article told the tragic story of Julie Craven, whose child was murdered by her abusive ex-husband during a court-ordered visit. The report outlined how the criminal court had ordered the ex-husband to stay away from Craven, while the family court had granted the man unsupervised access to their son every weekend, according to a coroner’s inquest.

“The two systems interact quite frequently,” Shuber, lawyer with Beard Winter LLP, tells AdvocateDaily.com. “In family law cases, your client could either be the alleged perpetrator or the alleged victim of domestic violence.  You have to be sensitive to these issues and allegations from the get go.” 

“Studies show that a person in an abusive relationship is at the highest risk of serious injury or death in an intimate relationship at separation. Family lawyers see people who are right at that critical cross road. We need to be aware of this potential," says Shuber. “These things need to be handled sensitively by both sides.”

If criminal charges are laid when the parties separate, the criminal lawyer and the family lawyer should be in touch right away, Shuber says. They want to be sure to work cohesively on the file.

“It’s ideal to have both areas of the law involved right from the get go, that way the left hand knows what the right hand is doing,” Shuber says. “A wrong step in one proceeding can have serious ramifications in the other. The two lawyers should work together.”

A family lawyer may provide input on bail conditions, for example, so they are reasonable and workable in a family law context, especially when children are involved. Standard bail orders do not allow for direct or indirect contact, and a family lawyer could suggest terms that allow communication for access purposes, says Shuber.

“The nature of the charge makes a difference,” she says. “Counsel need to consult with their clients and consider whether, in that particular case, some kind of contact between the spouses might be appropriate and possible, despite the criminal charge, for example, but limited to children’s issues. Every case has to be considered on its specific facts.”  

While there are no rules stating a criminal lawyer must contact a family lawyer in such circumstances, Shuber says it is a best practice model everyone should follow.

The Ministry of the Attorney General is in the process of evaluating the effectiveness of a pilot project it launched in mid-2011 for an Integrated Domestic Violence Court at 311 Jarvis St. in Toronto, says the Star. It aims to boost communication between the criminal and family justice systems for families dealing with domestic violence by connecting one judge to one family.

The program provides one court where families can have certain family law issues and domestic violence criminal charges heard before a single judge.

A “one judge” system would certainly allow for greater information sharing, says Shuber, but she says the format would also create concerns.

“The information being provided in criminal cases may or may not be prejudicial to the family law case. And vice versa. In the family law case, an alleged perpetrator may choose to attend anger management classes in the hopes of getting better access to his children but fear that, in the criminal case, that fact of his participation in the program could be used as an admission of his criminal behaviour, she says.

“Also, the burdens are different. In criminal law, the assault or death threat has to be proved beyond a reasonable doubt, whereas in a civil courtroom, which is what a family law courtroom is, the question is determined on a balance of probabilities,” says Shuber, who has not yet had a case before the Integrated Domestic Violence Court. “Just because an accused was not convicted of an assault does not necessarily mean that there have been no issues of violence that need to be addressed in the family law context, in the interests of the spouse and children."

Timing is another factor that would have to be dealt with, says Shuber.

“Criminal cases and family law cases do not normally progress on the same schedule. How would that work in a unified court? Would one case be rushed and could a party potentially be prejudiced as a result?” 

And what about the issues raised by a shared information database?

“Who would have access to that?” says Shuber. “Our entire criminal system is informed by the principle that a person is innocent until proven guilty. Would a unified system be undermining that, because we sometimes almost assume culpability in the family law proceeding and err on the side of caution in order to protect the children?"

The issue is complex, says Shuber, noting she isn’t for or against an integrated system.

“It’s not a simple solution,” she says. “There are benefits and there are challenges to an integrated criminal and family law court. When people put their minds to the obstacles, they can be surmounted. But first they need to be recognized.”

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