Best Practices where there is Family Violence (Criminal Law Perspective)

7. Sentencing

7.1 Impact of Conviction, Peace Bond or Withdrawal on Parallel Proceedings

The outcome of a criminal prosecution will have a significant, but not always determinative, impact on parallel civil proceedings relating to custody, access, support and child protection. In advising a client about the consequences of guilty plea or other resolution agreement, criminal lawyers should be aware of the potential effect on parallel proceedings.

7.1.1 Conviction

Criminal convictions cannot be “re-litigated” in the course of family law proceedings. Where a finding of guilt has been made in respect of an incident of family violence, the offender cannot use family law or child protection proceedings to attempt to show that he or she was wrongfully convicted. The conviction is binding on the civil courts and so it is important that an accused is aware of the potential consequences of such a conviction.

There is general agreement on the part of family violence and divorce scholars and practitioners that shared parenting or joint physical custody is not appropriate in most cases involving serious and substantiated violence and abuse, either toward a child or a parent, as the witnessing of parental abuse is recognized as a serious form of child abuse (Jaffe, et al., 2005). How this principle is applied in practice is considerably more complicated. As Jaffe, Crooks and Bala explain:

The cases at the extreme ends of the family violence spectrum are most straightforward. At one end of the continuum, there is probably agreement that a perpetrator of chronic family violence who has demonstrated a pattern of abusive behaviour over time, with little remorse or investment in treatment, and whose main focus is on punishing an ex–partner rather than fulfilling a parenting role should have either no access or very limited access supervised by highly trained professional staff. At the other end of the continuum, an isolated incident of minor family violence (e.g., a shove), which is out of character, accompanied by genuine remorse, responsibility taking, and did not induce fear or trauma in the other parent, would not in and of itself preclude the possibility of a co–parenting arrangement. In between these extremes is a canyon of gray in which matching parenting arrangements to families is challenging, and dependent on analyzing a host of factors. Some of these factors relate to historical relationships and characteristics of individuals, some relate to available resources in a particular community, and others relate to the stage of proceedings and available information (Jaffe, et al., 2005: §5.1).

The case law demonstrates that parental conduct, including domestic violence, is one factor, albeit, a generally significant factor influencing family court’s decision in respect of custody and access decisions.  It is not, however, determinative in every case. As the court explained in MacNeil v. Playford:

Family courts decide custody and access based on the governing legislation and case law, and in reference to the best interests of the child. The criminal justice system, on the other hand, pays no heed to the best interests of the child because the criminal justice system is not designed to do so, nor are the participants trained to do so.

Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his/her child. Domestic violence demonstrates an inability to problem solve in a healthy manner. Domestic violence shows the absence of respect and dignity for the other parent. Domestic violence demonstrates a reactive personality with poor impulse control. Domestic violence is emblematic of poor parenting skills.

Domestic violence will usually impact on the court's determination as to whom should be assigned primary care of a child. This is one factor, albeit a significant one, which determines the best interests of the child. The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined and balanced in determining the best interests of the child.

Further, although a criminal conviction does impact on credibility, it is not conclusive. Credibility determinations are fact based and must be assessed in light of all of the evidence (MacNeil v. Playford, 2008: paras. 10-13).

The resolution of an allegation of family violence in the criminal justice system does not mean that the family justice system will not be required to grapple with issues of family violence. It is critical that all parties in family law dispute (the litigants, counsel and the court) have sufficient information so that 1) victims of serious violence are not inappropriately pressured by lawyers or order by judges to engage in the non-adversarial approach warranted in other family law cases; and 2) litigants are not inappropriately denied access in situations of mutual abuse or false allegations of abuse. In short, “justice system professionals must have a sophisticated knowledge of issues related to domestic violence, and an ability to respond in a ‘differentiated fashion’ that recognizes the dynamics and issues of each individual case.” (Bala, et al., 2007: 2)

In addition to the impact a conviction may have on custody or access decisions, abusive conduct may also constitute evidence of a “spousal tort.” In Valenti v. Valenti, 1996, for example, a guilty plea by the husband to assault causing bodily harm against his wife was admitted into evidence and used as a basis for damages for $10,000 for pain and suffering and $2500 as punitive damages. In awarding the damages for the assault, the court cited the facts as read in at the husband’s guilty plea.

7.1.2 Conditions attached to Peace Bonds and Probation

Criminal lawyers advising clients on the resolution of criminal charges arising from allegations of domestic violence by way of peace bond or probation should be aware of the possible implications in parallel proceedings.

An accused person who is subject to restrictive bail conditions and in the midst of a family crisis may be eager to resolve his or her charges and accept a “good deal” from the Crown.  Entering into a peace bond in exchange for the withdrawal of the charges, for example, puts an end to restrictive bail conditions, leaves the accused without a criminal record and avoids the expense of a criminal trial. For many clients, those results are sufficient to balance any potential negative consequences. Nevertheless, potential pitfalls do exist and clients, particularly those in the midst of heated family law disputes, should not enter into a peace bond lightly. In this section of the report, we highlight the impact that a peace bond can have on family law proceedings. Though the focus is on resolution by way of peace bond, the concerns addressed are equally applicable to cases where a conviction for a relatively minor domestic assault is accompanied by a suspended sentence and a period of probation.

The issuance of a peace bond or the imposition of sentence following conviction can affect family law proceedings in at least three ways: first, a peace bond may be taken by a family court judge as proof of wrongdoing; second, the terms of the peace bond or probation order may contribute to the establishment of a “status quo,” a factor considered in making custody determinations; and third, the non-communication terms of a peace bond or probation order may interfere with the ability of parents to communicate effectively, a pre-requisite for joint custody.

7.1.2.1 Peace Bonds as Proof of Wrongdoing

The federal Divorce Act and Ontario’s Children’s Law Reform Act both provide that in determining custody issues, trial judges must consider only what is in the best interests of the child – not the parents. The past behaviour of a parent is not considered unless it makes him or her less able to act effectively as a parent. So, for example, a judge deciding on who will be awarded custody, may not take into account which parent is to blame for the breakup of the relationship. However, where a person who wants custody or access has ever been violent or abusive towards his or her spouse or child, that behaviour must be taken into account (Divorce Act, s. 16(8) and (9); CLRA, s. 24).

As explained above, a civil court must accept a criminal conviction as proof of the conduct underlying the conviction. On the other hand, entering a peace bond is not an admission of guilt and the presumption of innocence remains in place. However, to the extent that entering a peace bond is an acknowledgement that the complainant had reasonable grounds to fear the accused, it may form a relevant part of the analysis of a family judge’s determination of whether there has been a past history of violence or abuse. An individual who has signed the “acknowledgement form” necessary to enter the PARS program may have difficulty denying that his or her behaviour caused the complainant to be fearful. There is also a concern that family court judges may be unfamiliar with the legal effect of a peace bond.

In Otis v. Gregoire, the trial judge in making a custody and support decision considered the criminal proceedings that arose from an allegation by the wife that her (former) husband was harassing her. The charges were ultimately resolved by way of a 12-month peace bond with conditions that the husband not communicate with the wife or be within 50 metres of her residence. The trial judge wrote that Mr. Gregoire, “reluctantly agreed that he must have entered a plea of ‘true’ to the charge” of criminal harassment. The trial judge went on to find that the peace bond:

is convincing evidence that the husband was responsible for criminal behaviour sufficient to support the conditions imposed.  I accept that responsibility lay with the husband and that the wife had basis to fear for her safety.   Such orders are not made lightly or without sufficient evidentiary foundation (Otis v. Gregoire, 2008: paras. 13-14).

In Otis, the peace bond entered into by the father did not ultimately impact the custody decision made by the family court judge. Justice Whalen concluded that the misconduct had been adequately addressed through the criminal process. The case nonetheless demonstrates the potential for peace bonds to be used as proof of prior misconduct. In Otis, the father was asking for relatively limited access rights permitting the couple’s children to stay with him several times a week and not overnight. In a contentious family law trial where both parties are aggressively seeking custody of the child or children and are otherwise similarly situated, the imposition of a peace bond more play a more determinative role.[14]

7.1.2.2 Creation of the “Status Quo”

Among the factors considered in deciding what custody and access arrangements are in the child’s best interest is the stability of the child’s present home environment and how long the child has been in that home (CLRA, s. 24(2)(c)). The “status quo” is a particularly important factor during interim custody proceedings:[15]

Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: what temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible (Marshall v. Marshall, 1998).

Where a child’s welfare is at issue, courts tend to be cautious and demonstrate a preference for maintaining the status quo where it has proven beneficial to the child. Peace bonds which include conditions that limit the ability of a parent to develop or maintain a normal relationship with his or her child or children can play a significant role in the establishment of a “status quo.” In Otis, for example, the trial judge found that:

Although I do not question that the restrictions in the recognizances were warranted, it is clear that they have also interfered with the normalization of relations between the husband and the children by complicating and limiting the exercise of access. Direct communication has been impossible between parents. While this may have given the wife some assurance against further threatening interference, it has done nothing to promote the rebuilding of the trust and co-operation necessary to re-establish, encourage and maintain healthy relations between the children and their father. It has been necessary to involve third parties to facilitate limited access privileges. Communication between the husband and children has also been undermined because he cannot telephone the home out of fear that the wife might answer (Otis v. Gregoire, 2008: para. 17).

Like the bail conditions described in Shaw, conditions attached to a peace bond or probation order can lead to the establishment of a status quo that did not exist before the laying of criminal charges and that is detrimental to the accused in the family proceedings.[16] Counsel and their clients should also consider that a resolution which requires the accused to complete a PARS program before the charges are resolved will further lengthen the period of time the accused spends subject to restrictive bail conditions. Defence counsel should therefore ensure that the conditions of bail, and those attached to the eventual peace bond or probation order, allow for the maintenance of a normal relationship between the client and his or her children.

7.1.2.3 Communication Between Spouses

A “non-communication” condition with the complainant is a standard term of any peace bond entered into in exchange for the withdrawal of a criminal charge involving an allegation of domestic violence. Such a condition will generally have an exception that allows for contact so long as the complainant provides his or her written revocable consent. Such conditions are also likely to be included in the terms of a probation order or conditional sentence order.

The ability of former spouses to communicate is critical for the imposition of certain custody arrangements – particularly joint custody, designed to preserve both parents’ legal responsibility over a child’s upbringing. The Ontario Court of Appeal in Kaplanis v. Kaplanis, held that a joint custody order can be considered even where one parent professes an inability to communicate with the other parent.  However, there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another (Kaplanis, 2005).

Accordingly, it is important to ensure that there are meaningful exceptions to any non-communication condition included in the terms of the peace bond, probation order or conditional sentence order. Counsel may wish to consider proposing a term that allows for communication with the consent of the complainant and/or that contains an exception which allows for contact pursuant to any family court order or separation agreement. Parents must be able to continue to communicate in the best interests of the child, without placing the client in breach of the peace bond, probation terms or conditional sentence order (CSO).

As with bail conditions, considerable thought must be placed in crafting “no contact” terms of probation orders so as not tie the hands of the family court or prevent genuine reconciliation attempts within the family. Justice Bovard suggests the following:

You may not contact (name of complainant) except:

OR

OR

OR

7.1.3 Acquittal

An acquittal following a trial in the criminal courts does not guarantee that the allegation underlying the charge will not be used as the basis for damages in a family court or child protection matter. Allegations must be proved beyond a reasonable doubt in criminal proceedings but only a balance of probabilities in civil matters. The different standards of proof and rules with respect to the admissibility of evidence help explain why a claim of family violence that is not substantiated by a criminal conviction may, nevertheless, factor into a decision in respect of custody and access or an application for exclusive possession of the matrimonial home. A finding of assault or battery against a spouse can also be made in a civil proceeding even where the defendant was acquitted of a criminal charge in respect of the same underlying conduct.

In Shaw v. Burnelle, for example, Justice Blishen concluded that the husband either pushed or threw the wife from the house and caused a severe fracture to her wrist. These findings were made despite the fact that Mr. Shaw was acquitted of assault in respect of the same allegations. Justice Blishen explained:

This is not a criminal trial where the Court needs to make a determination beyond a reasonable doubt. The issue is whether or not, on a balance of probabilities, Ms. Brunelle has proven that Mr. Shaw intentionally caused harmful contact, thereby committing the tort of battery. Although there are weaknesses in the evidence of both parties, on balance I prefer the evidence of Ms. Brunelle which is corroborated by Byron Shaw and Constable Elmi. I find that Mr. Shaw either pushed or threw Ms. Brunelle out of the house on August 22, 2007, thereby causing a severe fracture to her right wrist (Shaw v. Burnelle, 2012: para. 76).

The wife was awarded general and aggravated damages of $65,000, $25,000 for loss of competitive advantage, and damages for costs of future care to be determined by an actuary. The aggravated damages portion of the award totaled $15,000 and recognized the ejection of the wife from her home in the middle of the day by her husband, and the contribution of the husband's conduct to her ongoing mental health problems. (See also Ruscinski v. Ruscinki, 2006: at para. 58.)

7.2 Variation of Orders

7.2.1 Conditional Sentence Orders

The optional conditions imposed as part of a conditional sentence order can be varied in accordance with the procedure set out in s. 742.4 of the Criminal Code. The section provides that either a supervisor, the offender or the prosecutor may propose a change to the optional condition. Where the supervisor proposes the change, he or she must give notice to the court, the offender and the prosecutor. If no party requests a hearing within seven days of receiving the notice and the court on its own motion does not require a hearing, then the proposed change takes effect 14 days after the court received notice. On the other hand, where the application for a change is made by the offender or the prosecutor there must be a hearing and the hearing must be held within 30 days after the court receives notice of that application.

In R. v. Kobsar, Justice Germain of the Alberta Queen's Bench, expressed some criticism of the powers granted by legislation to the CSO supervisor and held as follows:

My suggestion to supervisors is that they should follow four fundamental rules when applying under S. 742.4(1) to vary a CSO. This list is not intended to be exhaustive:

  1. They should order and review a transcript of the sentence hearing to determine what information the sentencing judge had, and what the expressed reasons for the sentence were.
  2. The power given to a supervisor under S. 742.4(1) should be used sparingly, given the great risk to the administration of justice inherent in this procedure. A change of circumstance is something that was not reasonably contemplated by the sentencing judge, not simply the behaviour (whether expected or not) of compliance with the order. In particular, the word “desirable” in the subsection should not be equated with “beneficial” to the accused.
  3. Amendments proposed by supervisors should be technical as opposed to substantive. Some examples might be a change of address, a temporary absence to attend important family business, or the relaxation of territorial travel limits to comply with another term of the order, an extension of a territorial limit for employment, or the substitution of any named contacts such as caregivers or legal counsel to whom visits were prescribed as lawful excuses for absence from the home. A change to the length of the “house arrest” portion of the order is a substantive amendment for which the offender should be referred to the procedure set out in 742.4(5).
  4. Subsection 742.4(1) should never be used when it is really the offender who wishes the change and the supervisor simply feels that the proposed change is not a bad idea. The proper approach in such situations is to suggest that the offender invoke ss. 742.4(5) (R. v. Kobsar, 2004: para. 26).

7.2.2 Probation Orders

Variations of probation orders are governed by s. 732.2(3) of the Criminal Code. A probation order will require the offender to comply with a number of conditions. Some of the conditions are mandatory: the offender must “keep the peace and be of good behaviour”, appear in court when required to do so, and notify the court and probation officer of any change of address or employment. There are also a number of optional terms, which include reporting conditions, non-consumption of drug and alcohol conditions, non-possession of weapons conditions, non-attendance conditions, non-association/communication conditions, and treatment conditions.

The court that made the probation order may, on application by the offender, the prosecutor or the probation officer, vary the optional terms, relieve the offender from compliance with the optional terms and decrease the period for which the order is to remain in force.

A victim’s input is important in assessing the appropriateness of any variation of a probation order. Obtaining this input is facilitated where the probation officer has maintained some contact with the victim. Regular communication with the victim also provides a probation officer with a way of corroborating information provided by the offender during case supervision and facilitates the enforcement of the probation order.

[14] Clients may also wish to consider whether the complainant might pursue a civil suit and how a peace bond could be used in that context.

[15] Interim custody orders set out the custody and access regime that governs until the matter is finally resolved.

[16] Importantly though a court will not allow a party to take advantage of a dishonestly manufactured “status quo.” See, e.g. LiSanti v. LiSanti (1990), 24 R.F.L. (3d) 174 (Ont. Fam. Ct.).