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More flexibility needed in domestic violence bail orders

Legal professionals must co-operate to prevent low-scale domestic violence charges from turning into a lengthy family court litigation, Toronto family lawyer Steven Benmor tells AdvocateDaily.com.

When married or common-law relationships are in the process of dissolving, Benmor, principal of Benmor Family Law Group, says it’s not uncommon for minor altercations to cross into the criminal realm.

“Someone stands in the doorway to block someone from leaving, throws a set of car keys, or says something threatening that they don't really mean, and would never act upon,” he says. “It sometimes happens between people who can no longer live together.”

However, Benmor says police have little discretion in terms of charging when a spouse dials 911 and lodges a domestic violence complaint.

The situation is then typically compounded when the accused comes before a justice of the peace who imposes standard bail conditions — that they stay away from their spouse, keep the peace, don’t possess firearms, and have contact with their children only “by way of a family court order.”

“The police, justices of the peace, and Crown attorneys together are causing needless family court litigation by treating all allegations of domestic violence the same way,” Benmor says. “We legal professionals all need to work together in order to ensure that, despite these isolated situations, the children involved never suffer from the loss of a parent for a lengthy period of time, provided it is safe.”

Benmor says he understands why an accused person would agree to the conditions of their release, especially if they’ve spent a night in jail awaiting a hearing in criminal court.

However, he says neither the criminal lawyer nor their client usually understands exactly what it could mean for the parent’s relationship with their children until they get in touch with a family lawyer.

“Of course domestic violence is a serious problem, and many women and some men are killed every year by former or current partners,” Benmor says. “But, at the other end of the spectrum, this is what happens every day in criminal court when people don’t fully comprehend the ramifications of what 'no contact without a family court order' means."

Following a criminal charge, Benmor says a family lawyer is not always at the top of the estranged partner's priority list, especially if they’re already paying a criminal lawyer, and worrying about whether they will keep their job.

Even after contacting a family lawyer, he says a straightforward case can take anywhere from 20 to 30 days to get into the court system process since an application for a family court order requires a swath of personal and financial supporting documents.

“All the while, they’re not living at home, and not speaking to their spouse, or seeing their kids because it would be a violation of their bail that could send them back to jail,” Benmor says.

Assuming the client’s spouse does not ask for a postponement, they have a further 30 days to respond to a family court application before anyone can even think about seeing a judge, he says.

The first appearance is typically a case conference in front of a judge who may make recommendations for settlement purposes, but Benmor says the process can easily become bogged down in motions if the two parties don’t see eye to eye.  

“All of a sudden, you’re months down the road from the minor altercation that started everything, and still there’s a no-contact order, and you remain separated from your children,” he says.

Benmor says many of these situations could be avoided if justices of the peace or Crown attorneys were more flexible in their wording of bail conditions.

“If it's clear that it will be safe to do so, they shouldn’t be limiting contact to family court orders,” he says. “They could go on to say that contact between the spouses can occur through a third party such as a family member, friend or lawyer, for the purposes of organizing the scheduling of parenting time.”

Bail conditions could also account for the possibility of disagreement between the spouses over contact by imposing an interim parenting schedule that is binding until varied by a family court judge, Benmor adds.  

“Anything that allows contact to occur between a parent and the children in a way that’s safe is preferable,” he says.

Benmor says he would also welcome the reintroduction and expansion of a previous pilot project that combined criminal and family proceedings concerning the same people into an integrated domestic violence court.

“A very small percentage of cases were handled through the pilot project, so you were very fortunate if you were included,” he says.

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