Law Times

Page 12 December 10, 2012 • Law Times FOCUS defence urged to think broadly in domestic violence cases Criminal, family lawyers should collaborate as legal issues overlap, say judges BY GLENN KAUTH Law Times C riminal lawyers need to take greater heed of family law issues in domestic violence cases, according to panellists at November's Criminal Lawyers' Association conference. "You are going to have to take a broader view," Ontario Court Justice June Maresca told lawyers during a session on the intersection of criminal and family law at the Nov. 16 event in downtown Toronto. Criminal lawyer Esther Daniel presented the panel with the scenario of a client whose marriage is ending and who's facing a charge of threatening his wife. The court grants the client bail but with conditions including a no-contact order. The client will eventually seek access to the kids, but if the conditions preclude him from contacting his wife, how can he arrange visits with them? That's why it's important for criminal defence lawyers to ask questions at the bail hearing "in order to get terms that are rational," said Maresca's colleague on But while family law issues can complicate a defence lawyer's work, they can also help win the criminal case. Returning to the hypothetical scenario of the husband charged with threatening his wife, the panel heard about other problems in the family. The wife, for example, had been There's no parenting course that anyone can take that's going to make them a worse parent. the bench, Ontario Court Justice Roselyn Zisman. Duty counsel, Zisman noted, often don't consider all of those questions at bail hearings, especially when the focus at that moment is on getting release. "This is a holistic issue," she said. "There are also little kids here who are going to be harmed by not seeing their dad for a significant period of time," said Maresca. emotionally controlling the kids and had had difficulties during her separation from a previous marriage. That's where the continuing record of the family court can come in handy, said Nirmala Armstrong, a lawyer in Markham, Ont., who also spoke on the panel with Daniel, Maresca, and Zisman. The record contains the history of the case and affidavits that could reveal, Armstrong said, that the wife had threatened to make her husband's life miserable. The defence lawyer can then use that information to cross-examine the complainant in court, she noted. "You also want to check your own client's affidavits," said Zisman, who noted the accused may face cross-examination on them. In addition, it's important to look at both the order and the endorsement, said Armstrong. That's because the endorsement may be much longer than the order, she noted. Specific issues to look for in the family court file include any other proceedings the parties have been involved in and any motivation on the complainant's part to fabricate the allegations against the accused, said Zisman. Have there been similar incidents in the past, for example? 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MORE THAN A PHONE BOOK Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com complaint can be significant in family disputes, Zisman noted. That's because an allegation of domestic violence can help a spouse get supports such as legal aid and housing faster. In addition, the criminal charges can also allow the alleged victim exclusive possession of the family home, a situation that can become permanent as the case drags on. Other issues at stake in the intersection of family and criminal cases include the potential involvement of the Children's Aid Society. There are specific issues to consider in that situation, according to the panel at the conference. Criminal lawyers shouldn't, for example, tell the client to refuse to speak to child protection authorities. But clients must still be sensitive about what they say, said Armstrong, since the worker will record everything. Another key piece of advice from the panel was that the family and criminal lawyers involved in a case should talk to each other more. "I think the family lawyer and the criminal lawyer need to strategize together," said Zisman. For her part, Maresca had a simple recommendation when it came to advice criminal lawyers should give their clients who are in trouble: take parenting courses. "Often, my sentencing is different than it might be otherwise," she said. "There's no parenting course that anyone can take that's going to make them a worse parent." Beyond that, the panellists strongly urged lawyers to broaden their horizons in domestic violence cases. "The end game is not just getting the person off," said Zisman. LT

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