During his 20 years as a criminal defence lawyer, Joseph Neuberger has defended more than 400 cases involving charges arising from domestic relationships. Many, he says, relate to separation and bitter family court battles.
“Over the past 10 years, I have noticed an increase in the prevalence of these types of offences with a disturbing trend to use the criminal process as a quick means to obtain exclusive possession of the matrimonial home and thwart custody and access to the children of the relationships,” says Neuberger.
“I have successfully established fabrication in at least 15 per cent of the cases with very clear contradictions in evidence, including differences in affidavit evidence tendered in the family court proceedings.
Yet not one case resulted in charges being laid against the complainant.”
The absence of witnesses makes prosecution of false allegations difficult. While Neuberger emphasizes the need to take legitimate cases seriously, he worries there isn’t much in place to prevent a spouse from fabricating an allegation.
It’s a trend Murray Maltz, who has been practising family law for 27 years, has also noticed. But there are no studies, no way to quantify the problem, and, most troubling, no solutions at hand.
When someone makes a complaint, police must lay charges.
In family litigation, a criminal charge is like a red flag even when the case is still before the court. Additionally, the introduction of the criminal process can throw a wrench into any friendly resolution of the matter.
“So if you want to play the game, ‘I want custody, I want to control the situation,’ often people will take the position, ‘I’m going to call the police,’” says Maltz.
Immediately, the accused leaves the home and can’t communicate with the spouse and the children or come within a certain distance of the house. That makes the issues of custody and access more difficult.
As a result, according to lawyers, the spouse making the allegation has an edge in the case. With exclusive access, the children themselves could become pawns in the case.
Delays in the criminal system complicate the situation as the charge can easily loom for a year. By the time it’s over, says Maltz, the damage is done.
“How do you combat that?” he asks.
Domestic violence continues to be a concern in Canada. Statistics Canada reported last week that about 99,000 Canadians were victims of police-reported domestic violence in 2010. It also noted that more children reported witnessing domestic violence in 2009 than in 2004.
Clearly, the issue of domestic violence continues to be a serious societal concern. But complications arise from false allegations.
“The sad reality is that legitimate cases of abuse get tainted with the same incredulous brush,” says criminal defence lawyer Roots Gadhia.
Ontario introduced a new integrated domestic violence court last June to deal with people who had cases before both the family and criminal justice systems.
The pilot project is running in one Toronto location. Gadhia is hopeful this new court will be able to deal with the inconsistencies that she says are sometimes very apparent in the family and criminal court files.
The aim of the integrated domestic violence court is to improve the communication and co-ordination between the criminal and family courts, said Jason Gennaro, spokesman for the Ontario Ministry of the Attorney General.
“The court provides a single judge to hear criminal and family law cases relating to one family where domestic violence is an issue,” he says. “This will support the judge in more fully understanding the family and its ongoing needs.”
In 2009 and 2010, the government introduced legislative reforms to strengthen the family justice system and make judges more aware of violence that may have occurred in the family. Anyone applying for child custody or access must now complete a sworn statement.
Lawyer Esther Daniel points out that Form 35.1, an affidavit required for custody or access applications, requires those seeking custody to indicate if the applicant faces any criminal charges.
As a result, the family and criminal matters intersect when it comes to disputes over custody of the children and the matrimonial home.
As both a criminal and family law practitioner, Daniel worries the situation could lead to further abuse of the criminal justice system.
“It usually comes about when there’s a matrimonial breakdown and then police are called,” she says. “I’ve had a lot of criminal clients that have had proceedings against them . . . and family court proceedings follow.”
It’s difficult, she adds, to discern fact from fiction. Clearly, the issue of abuse between couples is one the courts take very seriously. But it’s also clear to many lawyers that some people use the process to further their own family law case.
“Unless you personally are witness to what the situation was . . . you don’t know 100 per cent,” says Daniel. “However, you can assess the situation and have a good judgment.”
At the end of the day, it’s the subjects of many of those disputes who suffer the greatest impacts, says family lawyer Kristy Maurina.
“We are dealing with real lives and the interests of children,” she says. “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.”
For those involved in a marital dispute, the damage is immediate once someone levies a criminal charge.
“All the stakeholders in the justice system . . . need to use their discretion,” said Daniel.
“Domestic violence is something that needs to be taken seriously. But at the same time, you do have to uphold the integrity of the justice system.
The persons in the justice system should be
supported when they use their discretion not to lay a charge or not to proceed with a matter and should do so free from the pressure that there may be professional consequences when doing so.”
Maltz foresees some practical approaches to the issue. Expediting the criminal matters, for example, is important, he notes.
The family courts, according to Maltz, have made great strides and become much less combative over the years while the criminal courts remain adversarial. In situations where there’s overlap or crossover between the two, they should work on the same level, he suggests.
“I’d like to see the courts somehow combine themselves and actually deal with the charges together."