Law Times

LAW TIMES / APRIL 21, 2008 NEWS PAGE 5 Judge critical of warring couples using criminal courts BY ROBERT TODD Law Times A bling parents that undermine the family law principle of put- ting children's needs first. Justice Bruce Pugsley of the judge has spoken out against criminal court matters involving squab- Ontario Court of Justice says a case in Orangeville, in which a woman was barred from the family home and given restrict- ed access to her children after being charged for allegedly as- saulting her husband, demon- strates "a continuing problem with how criminal procedures impact and pre-empt sound family law tenets." Pugsley said police and Crown attorneys dealing with such alleged assaults need to ex- ercise discretion more often. "Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults," wrote Pugsley last month in ordering the spouses to start an equal-time, alternating care schedule for their children. "In- variably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to 'Justice Pugsley, I think, rightly took on the system, and it was about time that a judge did,' says Ross Milliken. the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access." According to Pugsley: "The way that the criminal justice system approaches the com- mencement of these matters . . . often wreaks family law havoc with the family unit of the de- fendant and the complainant, and in particular the children of those parties." The criminal system, wrote Lawyers helping Ryerson students BY ROBERT TODD Law Times A ing disciplinary hearings. Pape Barristers Professional Corp. lawyer group of young Toronto lawyers have offered their services — free of charge — to Ryerson University students fac- John Adair came up with the idea after repre- senting Ryerson student Chris Avenir, who last month was cleared of a misconduct allegation for helping create a study group on the social networking site Facebook. "This is a good opportunity for the young Pugsley, isn't equipped to take family law interests into consid- eration. He said it can take up to a year for such criminal matters to be resolved, and until then the spouse facing assault charges is disadvantaged. "Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to in- nocent defendants pleading guilty at an early stage out of expediency or a shared de- sire with the complainant to start to rehabilitate the family unit," wrote Pugsley. In the case Pugsley was deal- ing with, Alison Shaw was charged with assault for alleg- edly punching her husband, Stephen Edward Shaw, on Feb. 9, according to the decision. She was charged with the assault about a month after the incident happened and was released on $5,000 bail. Her husband was effectively given "instant cus- tody" while the mother's access to the children was restricted, wrote Pugsley. The husband also received exclusive possession of the family home. "I can only hope that no licensed lawyer in this prov- ince would have advised the father that the fastest way to get custody and exclusive pos- session of the family home was to report the mother's trans- gressions to the police," wrote Pugsley, noting he's unaware of the advice Shaw received from the unnamed lawyer that ad- vised him before he asked for charges to be laid. Ross Milliken, a Bolton law- agreement that will allow inci- dents of alleged domestic vio- lence to be funneled to family courts, rather than being dealt with as criminal matters. That would let clients deal with a single lawyer, he says. "From a criminal law per- yer who currently represents Stephen Edward Shaw, says he supports Pugsley's criticism of the criminal courts' handling of such matters. "Justice Pugsley, I think, rightly took on the system, and it was about time that a judge did," says Milliken. "Pugsley's an excellent candidate to be raising these things because he's articu- late and he's thoughtful." Milliken says he's dealt with similar issues throughout his career. He recently was retained on a matter in which a 60-year- old grandmother allegedly threatened her husband and was jailed for a day. "They're always the worst kind of cases," he says. Tom Dart, chair of the On- DD LT RX3rdD-04 Print ad 4/11/08 10:09 AM Page 1 tario Bar Association's family law section, says the family law bar has been trying for a while to get the federal and provin- cial governments to come to an spective, society has an interest . . . in making sure that victims are protected," says Dart. But, he argues, "usually domestic violence is a family relationship issue, and, generally speaking, the violence in that type of case is within the family. It's not nec- essarily that someone else in the community is in danger from the person that committed the domestic violence." Milliken, who practices both criminal and family law, suggests two ways to solve the problem. He says that, in such situa- tions, accused persons should be released on undertakings "way more often than is hap- pening," rather than being held for bail hearings. And he agrees with Pugsley's suggestion that police be given more discretion. "I think police can sniff out situations where a spouse may be trying to manipulate the system, and if they had some discretion, they could say, 'I'm not going to interfere here.'" LT Dye & Durham Printing & Graphic Services taking the path to a greener tomorrow lawyers to gain quasi-courtroom experience," he says. "Here's an opportunity for us to get good experience and also to help out the Ryerson students." Adair says the students could benefit from some legal advice, as John Adair they're "facing the prospect of being labelled someone who's com- mitted academic misconduct, who is going to be or might be ex- pelled from the university. And it doesn't get more serious than that if you're a student." Adair notes that students at the university are allowed a lawyer at a senate appeals committee hearing, which takes place if the panel of faculty members suggests expulsion. Adair, who was called to the bar in 2006, says he and some of his peers hope to be by the sides of students at such hearings. He has so far received commitments from four lawyers — each with less than five years' experience — from "top-ranked firms" to do- nate their time to a one-year pilot project that would provide legal services to Ryerson students. The Ryerson Students' Union must approve the project, but presi- dent Nora Loreto is confident a deal will be struck. "These kinds of cases are the cases where we need more of a legal background or a legal mind to help us," says Loreto. "They don't come around too often, but certainly when a case does surface, we can take all the help that people are providing." The student union offers advocacy support for students and has a full-time staff person dedicated to it, says Loreto. "But sometimes cases come up that are quite high-stakes and high- risk, and we need a little more help." Loreto says the student union must first consider how the lawyers would work with its staff person on cases, and she must get the in- coming student government's view on the issue. "But beyond that, we probably want to come up with a partner- ship that makes sense and that's easy for students to access, and that we'd be able to advertise," says Loreto. LT Just by using Dye & Durham's printing services your company will be choosing to also take the path to a greener tomorrow. Printing on FSC-certified papers is an effective way to demonstrate your commitment to responsible forestry. Leading companies already specify FSC-certified paper and wood products. 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