Family law encompasses issues and disputes occurring within a family setting. Subjects subsumed under family law include divorce, separation, family justice services, child custody, and access, spousal support, child support, equalization of family property, the matrimonial home, enforcement of support payments, child protections and adoptions.  The family law court is competent to make orders regarding these matters. However, in some circumstances, actions surrounding these subject areas overlap with offences under the Criminal Code.  For example, criminal charges apply for withholding access to the matrimonial home, stalking, assault and sexual assault.  There is no doubt that criminal charges should be available to protect some families, but the Criminal Law has been both a blessing and a curse for Family Law matters.
A clear benefit of the Criminal Justice System is that a victim has the benefit of state resources to prosecute the offending party. In a family court, a victim must face the offending party on equal footing. In sharp contrast to the criminal law setting, an offending party can also hurl counterclaims against the victim in family court that the victim must defend against.  Furthermore, victims of crimes under the Criminal Code are entitled to certain benefits and resources from the state. At this moment, the federal government is planning on passing legislation that would create a Victim’s Bill of Rights that would increase victim services. This Bill would create stronger positive rights for victims of crime such as allowing family members to claim funds for victims, and a process to review complaints against the system.  Hence, families dealing with abusive or other criminal situations could benefit from these resources as they begin the process of recovering from an abusive partner.
Another theoretical benefit of the criminal law system (that may also be perceived as a negative in an application) is that public policy does not allow for discretion in domestic assault cases. Police must lay charges if they are called to the scene during a domestic dispute..This is to prevent one spouse from intimidating another into not pressing charges. Taking away the decision to press charges from the victim, is supposed to take away the blame and ill will between the accused and the victim.
Criminal Law can also be used as an improper way to gain an advantage in family court.  For example, a criminal charge, whether undeserved or not, is a quick way for the other party to gain exclusive possession of the matrimonial home and to thwart the other side’s custody claims to children. . In Shaw v. Shaw, a husband called police to lay charges on his wife one month after the incident in question occurred.  The evidence suggests that he only made the decision to charge her after having a discussion with his lawyer. 
Using the Criminal Law in this manner is not a new phenomenon, but there are no comprehensive studies or statistics on the improper use of the Criminal Law to shed light on how prevalent the problem is in family court. This is because most domestic violence situations occur in the privacy of the home, where there are no witnesses that could assist in the prosecuting and fact-finding process.
The criminal process contributes to a breakdown in communication between parties and increases the timelines involved in resolving matters.Criminal charges may take at least a year before they are tried.  To combat these time increases, innocent defendants may plead guilty just to further along the process of gaining access to children, to the matrimonial home, or to reconcile the family.
Food for Thought
In circumstances where there are genuine criminal acts being perpetrated within the family setting, there is no dispute that criminal charges are necessary. Criminal acts within a family setting should not be tolerated. However, Criminal Law should not be used to gain a tactical advantage. Lawyers should never advise clients to lay charges against the other spouse unless there is a legitimate basis for doing so. It may even be necessary for public policy to shift to allow police some discretion on whether to lay charges. However, this must be done in a way to ensure violence and intimidation will not be perpetrated against a victimized spouse. While police should definitely err on the side of caution when they are called to domestic situations, a strict zero-tolerance stance may not be appropriate. The rights of all parties in the family must be considered.
In the integrated family violence court currently being tested out in Toronto, the same judge hears the family law issues and the domestic violence criminal charges at the same time. This is a definite step towards recognizing the uniqueness of Family Law related criminal charges and questioning the appropriateness of putting them through the usual Criminal Law track. As Family Law and Criminal Law intertwine there must be some mechanism in place to manage the growing inter-connectedness between Family Law and Family Law related Criminal charges.
Written By: Anita Guyadin, J.D.
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References and Footnotes
- Family Law, online: Ontario Ministry of the Attorney General. ↩
- Criminal Code, RSC 1985, c C-46. ↩
- All Women. One Family Law, online Family Law Education for Women. ↩
- “Beware Family Court: What Victim’s an Advocates Should know”, online: Women’s Justice Centre. As an aside, I acknowledge the complexities involved in labeling a particular party as a victim, but for ease of reference, the term victim will be used to refer to someone on the receiving end of criminal or oppressive circumstances. ↩
- Ibid. ↩
- Ibid ↩
- “Ontario Victim Services”, online: Ontario Ministry of the Attorney General. ↩
- Overview of Canadian Victims Bill of Rights, online: Prime Minister of Canada Stephen Harper <http://pm.gc.ca/eng/news/2014/04/03/overview-canadian-victims-bill-rights>. ↩
- Ibid. ↩
- Legal Information on Issues Related to Violence Against Women, online: Ontario Women’s Justice Network <http://www.owjn.org/owjn_2009/legal-information/criminal-law/271-mandatory-charging>. ↩
- Marg Bruinman, “Lawyer’s alarmed at criminal charges in family cases" Law Times. ↩
- Ibid. ↩
- Shaw v. Shaw,  O.J. No. 1111: 2008 ONCJ 130 cited in Thomas Claridge, “Winning Family Battles in Criminal Court” The Lawyer Weekly. ↩
- Ibid. ↩
- Bruinman, supra note 8. ↩
- Ibid. ↩
- Ibid. ↩
- Ibid. ↩
- Thomas Claridge, “Winning Family Battles in Criminal Court”, online: The Lawyer Weekly . ↩
- Ibid. ↩
- Bruiman, supra note 8. ↩
- Claridge, supra note 15. ↩
- “Integrated Domestic Violence Court”, online: Ontario Court of Justice <http://www.ontariocourts.ca/ocj/integrated-domestic-violence-court/overview/>. ↩