Reasonable Doubt: The unfortunate intersection of criminal and family law
Lately I’ve received a lot of referrals for domestic violence charges. In the court system, files where an assault allegation occurs in the context of a personal relationship such as a marriage or a committed relationship, is deemed a K-file. There are special prosecutors who are assigned to deal with these files due to the special issues inherent in these situations.
Spousal assault cases are complicated files, often not because of the facts of the case but because of all the other issues that arise. An accused is arrested and, unless it’s an extremely serious case or the accused has a terrible criminal record, he or she will be released on conditions. The usual conditions are to report to a bail supervisor, to have no contact whatsoever with the complainant, not to go to any workplace, residence or school of the complainant, and not to possess weapons or firearms.
There are often huge complicating factors for clients charged with spousal assault—they live with the complainant and now have to move out, they have to get permission from the courts to go to the residence to pick up their belongings, and they still have to make mortgage payments or car payments for houses and cars that they no longer have access to so long as the criminal matter is outstanding.
The biggest issue is when there are children involved. Did the alleged assault occur in front of the child? Was the child also assaulted? If so, you can guarantee there will be a no-contact order for the child as well. The accused can’t see their child, can’t go to their school, and can’t participate in any of the child’s social activities. If the child wasn’t involved or injured, sometimes there’s still a no-contact order in place.
But if a judge decides that the accused can have access to the child, then there will have to be carefully crafted conditions to allow for arrangements to be made for that access, which opens up a whole new can of worms. Does the condition allow for contact between the accused and complainant to facilitate access? Is it contact only by phone, by email, or in public? Is it indirect contact, i.e. through a mutually agreed upon third party? If there is direct contact between the accused and complainant, will that open the accused up to new, potentially false allegations about his or her behaviour or subject the complainant to further abuse?
If there’s an existing family court order, then criminal courts will often defer to it. But oftentimes there isn’t. And sometimes neither the accused nor the complainant can afford to hire family lawyers to assist them in that arena. My clients often seek my advice on the family side of things. Unfortunately, since I don’t practice in that area, I’m not as helpful as I want to be. The intersection between family law and criminal law is very real and is difficult to navigate.
I’ll continue with this topic in my next article. Stay tuned!
As an aside, I’d like to point something out for the benefit of readers like Seth, who commented on Laurel’s June 8 article about self-represented litigants. He called us lawyer folks “the dregs of society” (like I haven’t heard that one before!) because he assumes we’d snub anyone who’d offer us $75 an hour to work on their divorce case. Yes, of course there are lawyers who will not budge on their rates and they’re perfectly entitled to do so.
Many of those lawyers (and I’m speaking on behalf of criminal lawyers here) started by working up from the bottom, spending years taking on plenty of pro bono cases (that means free, people) and legal aid cases (which unfortunately, don’t pay much— look back on my article about LSS funding from the government). They’ve paid their dues.
But there are many lawyers who will do some work for free and have big legal aid practices. Many of my own files fall into those two categories. I’ve also accepted paid retainers that are extremely low simply because that’s how much the client can pay me. And I do everything in my power to make sure they get full, proper, and professional legal representation.
In her next article, Laurel will continue to address these issues and what you, as a consequence of legal and monetary barriers, can do.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.
Jun 29, 2012 at 4:33pm
Just stop decriminalizing criminal behaviors.....it's that simple.....uphold 'due process' and 'evidentiary standards' other than lies (preponderance)......until that happens 'desperation peddlers' will continue to put clients lives in unnecessary danger of harm or death.
Taxpayers R Us
Jun 30, 2012 at 10:53pm
Keep in mind that certain special interest groups also encourage certain litigants to make false statements of abuse to give them an edge in custody battles.
This issue was covered in senate meetings in 1998 and 2000 where some really, really shocking and disturbing practices came to light. Parents who had perfectly clean histories and no criminal records whatsoever were labeled as abusive parents only to ensure custody only had the chance to go one way.
Nancy, do you want to venture a guess who the senator (Anne Cools) ultimately blamed for encouraging these false statements?