There is a double-edged sword when it comes to domestic violence charges. The criminal justice system is slanted to favor the Complainant, the one making the accusation of abuse, in order to prevent other victims from facing fear in coming forward. As a society, we have categorically denounced violence within intimate partner relationships and we have prioritized the safety of those facing mistreatment. In doing so we place distinct significance on the Complainant’s accusations. For instance, if you were to make a false report to a police officer of a crime that did not occur, you would be charged with a criminal offence. However, with accusations of domestic violence, this is not the case. The Courts do not charge those who bring false accusations of domestic violence because our society wants those suffering from domestic abuse to feel comfortable coming forward and not fear any criminal consequences for doing so. Instead, once an allegation is made, the court takes instantaneous actions to ensure the protection of the Complainant and the immediate separation of the Accused from the family unit. These policies have been upheld and championed in order to create a societal structure based on respect and non-violence.
However, the other side of the coin is the Accused. There will always be those falsely accused of domestic violence. That is a fact. Unfortunately, there are spouses who make false allegations of domestic violence against their current or past partner. It happens for various reasons and inevitably results in one partner gaining a strategic advantage in matters before the family court system. It is very simple to accuse someone of domestic violence, and once the accusation is made, police and the courts always treat them as serious. Because of this, those falsely accused of domestic violence often feel as though they are considered guilty until proven innocent.
It has been my experience defending those falsely accused of domestic violence that the criminal charge is often laid alongside or in anticipation of matters being dealt with in family court. Those falsely accused are forced to navigate a criminal and family court system designed with the immediate needs and protections of the Complainant in mind. The criminal and family court systems have distinct and separate goals. While the criminal system is focused on assessment of guilt, the family court system is engaged in resolving issues related to the familial breakdown. Yet, while the ultimate goals of the two systems are distinct, the domestic violence charges will inevitably have an enormous impact on family law matters.
We are all aware of the effects a domestic violence charge has on the personal circumstances of the Accused. The Accused will inevitable have their existence turned upside down. False allegations of domestic violence will drastically affect every aspect of a person’s life for the worse. The Accused will face enormous damage to their personal lives and relationships. Depending on the Accused’s personal circumstances, they may face a loss of job security and the crumbling of relationships that they held dear. The stigma of being accused of Domestic Violence is enormous. The Accused will stand powerless, as their relationships with family, friends, and colleagues, many of which took a lifetime to build, deteriorate before their eyes. Of course, once the accusation has been made, the onus shifts to the Accused to prove to those around them that they could not have done what they have been accused of. While the Accused will be lucky if they continue to have some support by their side to see them through this difficult reality, they will inevitably face the denunciation of friends and family.
While experiencing the personal effects of a domestic violence charge, the Accused must navigate the harsh realities of the criminal justice system. Once the Accused is charged with domestic violence they will either be held in custody or subsequently released. If the Court finds the Accused should be held in custody pending trial they will spend months behind bars waiting for their day in Court. Not only does spending time in custody effectively usurp the basic liberties of the Accused, they may face the prospect of spending time in a violent and dangerous detention center. In the majority of cases, however, the Accused will be released while their charge works its way through the criminal justice system. Once released, they will be required to abide by a number of release conditions for the duration of their criminal charge. Many of these conditions will have an effect on the Accused in the exact areas they may be attempting to reconcile in the family court system, including child custody and property division.
In most cases, the Accused will be required to leave the family home and will not be able to return until the criminal matter is resolved. In some cases, the Court will allow the Accused to send a third party to the family home to pick up whatever belongings they require during this time. This means the Accused will need to find a separate place to live while the domestic violence charge makes its way through the court process. Where the Accused refuses to plead guilty, they will be required to wait for months on end to return home, and in many cases over a year. The financial toll can be devastating for those with no place to reside during this time and who lack the luxury of being able to fund a separate residence. Unfortunately, the inevitable result is that some of those who have been falsely Accused will plead guilty to the domestic violence charge out of necessity, as they have no other place to live during the duration of the criminal matter.
In the vast majority of cases, the release conditions will prevent the Accused from contacting the Complainant. This becomes especially difficult where the Complainant and the Accused share a life together, including custody of children. The Accused may need to speak to the Complainant about the logistics of sharing custody or scheduling but would be prevented from doing so. The release conditions will likely also include a requirement to stay away from the complainant’s place of employment or education. This may be exceedingly detrimental to the Accused where both parties work or go to school in the same location. The Accused may end up losing their job or dropping out of school if the release conditions cannot be varied to allow for the Accused and the Complainant to be in the same location at the same time. Even in cases where the Complainant contacts the investigating police officer or the Crown Attorney in order to retract their statement of abuse, the conditions placed on the Accused will likely continue for the length of the criminal matter.
Worse yet, in some cases, the conditions of release could include a requirement for no contact between the Accused and their child or children. In some cases, the Accused may be required to stay away from any minor children for the duration of the criminal proceedings. In those cases, while the Accused is already facing a criminal charge, a separation from their spouse and a removal from their home, they are also forced to accept the overwhelming prospect of being separated from their children for a substantial period of time. This is a period in their lives and the lives of their children that they will never get back. In fact, they will not even be given the opportunity to explain to their children why they will be absent from their lives for an extended period of time. The possible effects on the relationship between the Accused and their children are substantial. However, even where the Accused is allowed access to the children, their inability to contact the Complainant will inevitably cause a strain on their ability to plan and schedule time together.
In many cases, an Accused facing domestic violence charges will be simultaneously dealing with the breakdown of their relationship with the Complainant in the Family Court system. This may include applications initiated by the Accused or the Complainant to determine issues such as separation, divorce, property division, spousal support, child custody and child support. In the family court system, temporary and final orders are put in place to determine how the spousal or familial unit will operate once there is a breakdown in the spousal relationship. Practically speaking, either one or both spouses has applied to the court for a determination of how the ending of the relationship will unfold considering certain important issues such as property and child custody. The now separated couple either applies to the court to enforce an agreement the two have decided, or, where no agreement can be reached, they petition the court for a determination. Where there is no accusation of violence, both parties are on equal footing during this determination, albeit with whatever other relationship issues that may or may not be present. Once an accusation of domestic violence has been laid, the equal playing field ceases to exist and the Accused becomes at a marked disadvantage.
The Accused’s release conditions subsequent to the criminal charge now include the inability to access the family home, property or child access. This occurs simultaneously to family court matters initiated to determine the exact same issues, both temporarily and in the long term. While, before the criminal charges, the Accused may have enjoyed generous access to their children and full residence at or admittance to the family home, they will likely now face limited to no access to either.
In many cases, the determination of their issues in the family court system will be put on hold for the duration of the criminal matter, as it will inevitably have an effect on the ultimate order made. The Complainant will likely ask for the ultimate decision to be extended as a domestic violence conviction may have an enormous impact on the determination of divorce, separation and child custody. However, the criminal charge may become the focus of a number of emergency orders seeking a temporary determination of the family court issues based on the momentary effects of the domestic violence charge. The Complainant may apply to the court for temporary full custody of the children based on the threat of violence. Children who were the victims of domestic violence or who were even exposed to spousal violence may need a higher level of protection. The court may temporarily order supervised visitation or remove custody from an Accused pending the outcome of a found guilty of a domestic violence charge.
Keep in mind that the Accused is also dealing with a release order from the criminal charge, which already limits their access to the family home and property, to the Complainant and possibly to their children. Essentially, the Accused must face the turmoil of the criminal charge while witnessing the detrimental effect it has on their ability to have their family law matter dealt with in a just and temporal manner. The release orders of the criminal court may be in direct opposition to those of the family court, making access to children practically impossible.
On the one hand, as a society, we should take a strong stance against domestic violence. In the big picture, we need to ensure that those suffering abuse have the ability to leave violent relationships and seek justice through the criminal courts. Yet, we must not allow those falsely accused to simply become casualties in our battle against spousal abuse. Section 11(d) of The Canadian Charter of Rights and Freedoms requires all those charged with an offence be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. The effects of both the domestic violence charge and the family law system create a structure where the Accused is punished before they are convicted. They are denied access to their property and their children while until their guilt is determined. Instead, what we need is a balance. A system that can both punish and rehabilitate those convicted of domestic violence, while ensuring that those who have not yet been convicted of a crime, including that of domestic violence, are not the subject to the destruction of their livelihood and familial relationships based on an unproven accusation. Surely, we can protect the rights of the victim without destroying the life of the Accused.
Contact me today to learn more:
Jennesa@millarslaw.com or (519) 657-1LAW (1529)