Shaw v. Shaw – The Interaction between Criminal and Family Law

In this case, Justice Pugsley was faced with a set of facts that comes up all too often in family law cases. Justice Pugsley dealt with the return on an emergency Motion dealing with interim custody. The mother in this case, while out at a social function in the absence of the children allegedly hit the father. Prior to this incident, the mother sarcastically told a friend over the internet that, if he had a gun, she would shoot the father. Although the father was not fazed by this alleged threat and the hitting incident was very minor, he called the police and had the mother charged with assault. The mother was taken into police custody and held overnight. When she was released the following day, she required a surety in the amount of $5,000.00, was given severe restrictions on her release, and was restricted from attending at the Matrimonial Home and contacting the father and children. Justice Pugsley made some interesting comments on situations like these and the toll they take on the children of a marriage. Perhaps the most troublesome aspect of situations like these is that the party who is charged is in at an automatic disadvantage with respect to the fate of the Matrimonial Home and custody and access of the children. The fact that the criminal justice system applies this formula regardless of how minor the incident of assault makes this even more problematic. As Justice Pugsley points out, it is not the laying of the charge but the conduct of the system with respect to it that gives rise to these unfortunate consequences. By contrast, if minor assaults were treated differently, family Courts could make determinations regarding possession of the Matrimonial Home and custody and access of the children based on the best interests of the children, the overarching principle that applies in family law cases. In keeping with the pattern that Justice Pugsley comments on, the father immediately moved for sole custody of the children and was able to obtain this Order by virtue of the fact that he only presented one side of the story to the Court. The father significantly restricted the mother’s access to the children, which was clearly detrimental to their best interests. This case demonstrates the danger to children in cases like this, as the parents may exploit the control that they have over one another instead of considered what would be best for their kids. In this case, there was overwhelming evidence that the parents were equally involved in the care of the children. But for the assault charge, Justice Pugsley felt that the parties would have been awarded shared custody of the children. In light of the foregoing, the Judge awarded the parties custody on a week-about basis. Instead of joint custody, which requires more communication and co-operation between parents than these parties had, the Judge ordered an alternating care arrangement. As Justice Pugsley points out, the problem with the criminal justice system is that the Attorney General implemented a zero tolerance policy with respect to domestic assault several years ago. This means that, however minor an assault may be, police are required to charge people and the Crown Attorneys are required to proceed as outlined above. This process tears apart families and fails to serve the best interests of children.

This Post Has 2 Comments
  1. Justice Pugsley’s analysis of this case is, in my opinion, entirely correct and is a refreshing approach to cases where the intersection of family and criminal law affect the balance of power between parents. It is true that, all too often, the zero tolerance policy regarding domestic assault results in one parent obtaining exclusive possession of a Matrimonial Home or sole custody of the children. It is also troublesome that spouses can take advantage of this policy and use the tactic of falsely accusing their partner of violence in order to gain an advantage in the litigation. On the other hand, however, Judges have to be very careful not to dismiss these claims too quickly, as this would create a risk for a family where there truly is violence. Justice Pugsley has accurately weighed all of the possibilities in this case and, in my opinion, this would be an appropriate approach for similar cases in future.

  2. I agree with Justice Pugsley’s assessment of the detrimental impact that the interaction between the family and criminal law systems can have on a family involved in the family law system. Moreover, Justice Pugsley has accurately pointed out the danger and harm that a parent exploiting this interaction can cause the children. When parents use the criminal law system in order to obtain a tactical advantage in their family law matter, this should be taken into account as it is completely contrary to the children’s best interests, which is a guiding principle in family law.

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