Clients frequently ask me what happens if there are either domestic violence or assault allegations involved in separation and divorce. With domestic violence and assault, we leave the area of Family Law and enter the area of Criminal Law.
Immediately after a Canadian police force is told of a domestic violence incident, a variety of very inflexible legal processes begin. These processes are inflexible, intentionally, and they are often much more harsh than the person making the complaint wishes them to be.
Senator Patrick Brazeau’s arrest and jailing dominated the news the week before Valentine’s Day. If you will recall, he was taken away in handcuffs. Thousands of Canadians who have been through even the most minor domestic violence incident have experienced similar actions, minus the television cameras rolling. They learned, very quickly and with no warning, that criminal law is applied with no mercy and no balance, well before anyone gets their day in court.
And, let me be clear: family violence is wrong. It has no place in the Canadian family where it frequently damages children for life.
But what about false allegations used as ploys to get the other spouse out of the house, and mount a campaign of parental alienation? This does happen; during my 19 years of practice in family law, I have seen it far too often. I have also seen domestic violence far too often.
But as soon as assault charges, let alone sexual assault charges, become part of the picture, the police have no wiggle room. As soon as family violence is reported, the police must act. The report can be within seconds of the incident via a 9-1-1 call, or it can be years later, during a high-conflict divorce.
In Ontario, family law lawyers and criminal lawyers both refer to Shaw v. Shaw, a precedent case before Justice Pugsley. In this instance, Mrs. Shaw was the accused. The father immediately moved for sole custody and significantly restricted the mother’s access to the children.
As Justice Pugsley points out, the problem with the criminal justice system is that the Attorney General implemented a zero tolerance policy about domestic assault several years ago. This means that, however minor an assault may be, police are required to charge people and the Crown Lawyers are required to proceed in due course. This process tears apart families and fails to serve the best interests of children.
Here is the sequence of what happens next:
Step one is to take the accused person to jail, often in handcuffs. It does not matter if the police think the situation is minor, nor if the victim does not want the accused person charged.
Step two is to lay a charge. The accused can usually expect to spend the night in jail before appearing in court the next day, to be charged, and to be granted bail, if bail money can be found.
Step three is that the accused cannot return to the family home, and usually cannot communicate with his or her spouse. This means that a reconciliation, if desired, is now more difficult. Usually both spouses will need to hire their own lawyers. The accused will need to find a new home—an added expense during separation and divorce.
Step four is often the loss of a job. The news is full of speculation about various ways to remove Senator Brazeau from the Senate, prior to any conviction. The changes to lifestyle that come with a domestic violence arrest often make it impossible to work, and many employers don’t want an accused working for them anyway.
Step five is months will go by without any resolution to the matter, legal bills will pile up, reputations will be destroyed, and reconciliation becomes even more difficult.
Is this fair?
I believe there should be some degree, or proportionality, applied to domestic violence situations; some way of resolving minor problems without destroying lives and families when people want to maintain their marriage. The court system needs to create a second stream to deal with minor situations and provide people with the assistance in order to eliminate a repeat of violence and to assist in reconciliation if that’s truly what the parties want, and it is safe for the victim of domestic violence.
While Senator Brazeau is the man in the spotlight now, thousands of other Canadian men and women accused of a range of domestic violence have suffered the same before-trial punishments and the same obstacles to reconciliation while waiting for criminal courts to make decisions, truly harming the best interests of children.
And all too often children ask, over and over, “Where’s Daddy?” or “When is Mommy coming home?”