Family to criminal law case crossover a concern
While some family law matters legitimately jump to the criminal law area, the number of cases where charges against a spouse or partner are eventually dismissed or withdrawn is “concerning,” says Toronto family law lawyer Kristy Maurina.
Maurina, an associate at MacDonald & Partners LLP, says the problem is those individuals who are using the criminal process solely to gain an upper hand in the family law proceeding.
Often, this happens as a result of the difficult experience of separation where emotions are high and the anger between separating spouses can be all-consuming, she explains.
“There are some individuals who are so angry or hurt that they want to hurt or punish their spouse or partner for the relationship and/or separation and realize that they can accomplish this by having their partner charged criminally,” says Maurina.
Ultimately, she notes, having a spouse or partner charged criminally often results in the complaining spouse obtaining an immediate better result in the family law proceeding in terms of temporary custody, access and exclusive possession of the matrimonial home.
“After the charges are laid the complaining spouse often brings an immediate temporary (interim) motion based on the charges and incidents therein,” says Maurina.
“In some cases the charged spouse, who is otherwise a loving and devoted parent, finds themselves with no access, or supervised access, to their children, no role in decision making, and restrained from entering the matrimonial home or going anywhere near the charging spouse,” she adds.
In these cases, the charged spouse must defend the allegations in two proceedings and incur the costs of both family and criminal counsel, explains Maurina. The complaining spouse, she adds, may then also believe they have an advantage and become more litigious and less likely to try and settle on reasonable terms.
“In many of these cases the charges were often withdrawn of the Crown’s initiative or dismissed, but the charged spouse still had to incur the cost, time and emotional turmoil of the criminal process and faced an uphill battle in the family matter,” says Maurina.
This practice, she says, is hurting family law clients who are wrongfully charged based on false accusations from their former partner.
“It can take upwards of a year for the criminal matter to make it to trial. In the meantime, the charging spouse or partner often enjoys the benefit of an artificial status quo with respect to custody, access and exclusive possession of the home. The charging spouse then continues to rely upon the artificial status quo at trial, arguing that even though the charged spouse was not convicted, the children are used to the arrangement that has been in place, it would not be in their best interest to disrupt the arrangement given the passage of time,” she explains.
“Even when the charges have been withdrawn or dismissed, it can still be very difficult for the wrongfully charged spouse to get a final order disrupting the artificial status quo that has been in place,” she adds.
The charges can also have a significant impact on other members of the family, says Maurina.
“We are dealing with real lives and the interests of children. Not only can it be devastating to a spouse who has been wrongfully charged to have to fight for the custody and access rights they are entitled to, but it can have a detrimental impact on the children who are already dealing with the pain of separation, and are now faced with a loving and involved parent who is suddenly not allowed to see them anymore, or is only allowed to see them in the presence of a third party, who cannot come to the home they shared or speak with the other parent.”
Another unfortunate development lawyers are seeing in these types of proceedings, says Maurina, is the charging parent disappearing to a shelter with the child for days or weeks, with the charged parent returning home having no idea where the other parent and child have gone.
“Now not only does the charging parent have the criminal charges to utilize in the family proceeding against their partner, but they also rely upon the fact that they were forced to ‘seek refuge’ in a shelter,” she says.
“I am not in any way downplaying those cases where there is real abuse and violence, however, there are cases where a parent has fled to a shelter, laid charges, deprived the other parent of any access to their child, and the charges are later dismissed or withdrawn by the Crown,” she adds.
In terms of finding a solution to the issue, Maurina says it is a difficult situation, as there are certainly cases of real abuse where the charges are legitimate. In cases where criminal charges have been withdrawn or dismissed, she says family law judges should be willing to pay little regard to the artificial status quo that was put in place as a result of the criminal charges.
“Unless some pressing concern exists with respect to the best interests of the child and the charged parent’s ability to parent their child outside of the false allegations, judges should not be reluctant to alter any custody and access arrangements that have been in place as a result of the charges. It cannot be in a child’s best interest that a parent who may have received 50/50 access or even primary residence, but for the criminal charges, is now restricted to a much more limited access schedule. Similarly, judges should not be reluctant to make severe costs orders against the charging parent,” she says.
In the criminal context, it would be helpful to the family proceeding if there was some way for these matters to be expedited, she explains, whether the police have more discretion at the charging stage, more scrutiny is given where there is a parallel family law proceeding, or if the matter is expedited to trial.
“In some cases it takes upwards of a year for the criminal matter to be tried, which can lead to irreparable harm to the children and extreme prejudice to the spouse whose family law claims turn on the result in the criminal proceeding,” she says.
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