Lines between civil, criminal law often blurred in domestic violence cases
By AdvocateDaily.com Staff
In part two of a three-part series on domestic violence, Toronto family lawyer Jennifer Daudlin looks at the intersection of criminal and family law and how there is sometimes a disconnect when it comes to the best interests of children.
In cases of domestic violence, it can be common for family law and criminal law to coincide — highlighting the importance of information sharing among various legal proceedings, Toronto family lawyer Jennifer Daudlin tells AdvocateDaily.com.
“Competing orders can make progress in both proceedings somewhat difficult,” says Daudlin, founder and principal of Daudlin Law. “For example, you may get a criminal bail condition that says you can’t have any direct or indirect contact with an alleged victim who is the other parent of a child. That order may also be silent with respect to access to a child, while in family court, you have an order for access arranged through a third party.
"Communicating with the other parent to arrange access to a child where there is no exception to the bail condition constitutes a breach of that order and may result in further criminal charges," she says.
Two orders are often not in sync because judges have no way of keeping abreast of details in other related cases, she says.
In Toronto, a pilot project is aiming to provide a more holistic approach to such intertwined cases with the formation of the Integrated Domestic Violence Court. The court allows a single judge to hear both family and criminal law cases when domestic violence is the underlying issue. The idea is to allow for better consistency and quicker resolutions, according to the Ontario Court of Justice website.
“It allows judges to be better informed,” Daudlin says. “Often, in a family law proceeding, the person accused of violence is instructed by their criminal lawyer not to discuss criminal proceedings to avoid incriminating themselves. But by the same token, the family law judge needs to know the details of an alleged crime. Without knowing what they are, they may not be able to make orders that would protect the best interests of the child or either party."
In cases where a person feels they need protection — for themselves or their children — from an abusive partner, there are two available remedies: conduct orders, which are a civil option and restraining orders, which are criminal, she says.
“Each scenario will be different, and the specific circumstances will dictate which order is most appropriate," Daudlin says. "It may be the case that someone is not able to prove the requirements of a restraining order, which has a higher threshold that a conduct order. So the first step might be a conduct order and if that's breached, a case could be made for a restraining order.
“A person who has been harassed via text message, for example, and is fearful that behaviour will continue, may, as a first step apply to the court for a conduct order,” Daudlin says. Then if the harassment continues notwithstanding the conduct order, he or she could ask the court for a restraining order on a motion for contempt.
Even when a restraining order is in place, it is always at a police officer’s discretion whether to lay a charge, she adds.
Another relevant way family and criminal law may overlap is when a party is facing unrelated criminal charges.
“Someone may have lengthy criminal record — possession of drugs and trafficking, for example — and no violent offences,” Daudlin says. Though seemingly unrelated, the charges may be relevant to a family law case when it comes to the best interest of the child test, which is always referred to in custody and access cases.
"Section 24(3) of the Children’s Law Reform Act speaks to the relevance of a person’s past conduct and whether it may determine their suitability as a parent, and s. 24(4) refers to violence and abuse that may have occurred in the past," she says. "The criminality of a person's past may have an impact on determining what role they have in their children’s lives or if it's in the children's best interests to have them involved at all."
“But past conduct, in my view, can also speak to a person’s involvement in other criminal activity,” Daudlin says.
Most parents would agree, for example, that exposure to the drug culture and selling drugs could put a child at risk, she says, adding that seeing a parent arrested for such activity could also be traumatizing to the child.
“The person could be the most doting parent, love their child, make sure they have everything they ever need, but the fact that they have a criminal past — or present — potentially puts the child at risk,” Daudlin says. “So when determining a person’s ability to be a parent, we have to remember it doesn’t stop at domestic violence; we have to examine the whole picture.”
Click here to read part one, where Daudlin explores the legal issues around domestic violence, including the impact of the #MeToo movement on justice.
Stay tuned for part three in the series where Daudlin will discuss the importance of putting children first in separation and divorce.