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False Accusations Wreck Families
April 15, 2008 permalink
Based on an interview with judge Bruce Pugsley, the Orangeville Banner reports on a commonplace abuse within the court system. While a family court matter is pending, criminal charges are filed against a father, who is enjoined from contact with his family until the charges are dealt with. The family court then shreds the father's family, causing irreversible damage to his relationship with his wife and children. Typically eighteen months to two years after filing the charges, the trial date arrives and the crown moves to dismiss the charges for lack of evidence. The father does not get his children back. In today's story, the unusual part is that the accused party, Alison Shaw, is a woman.
Judge takes aim at abuse of system
Tuesday April 15 2008, By Richard Vivian, Staff Writer
The criminal court system is being manipulated to gain an upper hand in child custody cases, says Justice Bruce Pugsley.
In a matter addressed last month, the justice said there is a "continuing problem with how criminal procedures impact and pre-empt sound family law tenets." It's "commonplace" for one parent to allege spousal assault against the other no matter how "remote" or "trivial" the contact.
His comments came while addressing a request to revise bail conditions for Alison Shaw, who was charged with assault March 11 by Shelburne police. She had no prior criminal history.
Bail conditions put in place at the time "effectively gave the father instant custody and instantly restricted access by the mother to her children," Pugsley noted. He agreed at the March 19 hearing to allow equal sharing of custody on an interim week-by-week basis, until formal custody issues are worked out.
Shaw's charge stems from a "one-punch bar fight" with Stephen Edward Shaw at the Shelburne Legion in February. He complained to police more than a month later, resulting in the charge.
"The way that the criminal justice system approaches the commencement of these matters ... often wreaks family law havoc with the family unit ... and in particular the children of those parties," Pugsley said. "Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children.
"The criminal justice system pays no attention to such interests because it is not geared up to do so, nor are the participants widely trained in how the actions of the system -- from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency -- effect the lives of the members of the defendant's family."
The system places one party in a "position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved," he continued. "Ms. Shaw's case illustrates the dangers of speedy or discretionless criminal procedures."
Terms of release should have some "rational bearing" on the severity and timeliness of the charges, Pugsley said, adding he understands why Alison Shaw would sign "just about anything" to get out of jail.
"The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal justice system in a good light, although her story is commonplace," Pugsley said. "These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact."
"The way that the criminal justice system approaches ... these matters ... often wreaks family law havoc with the family unit."
Justice Bruce Pugsley
Source: Orangeville Banner
Addendum: An article in the Lawyer's Weekly deals with this case.
Winning family battles in criminal court
By Thomas Claridge, Toronto May 23 2008
Family law practitioners have welcomed an Ontario Court judge’s criticism of a provincial policy on combatting domestic violence that effectively requires police and Crown lawyers to prosecute any spouse alleged to have engaged in domestic violence.
Justice Bruce Pugsley’s criticism came in a case where a 40-year-old woman was arrested and jailed overnight based on her husband’s complaint that she had struck him more than a month earlier at a Valentine’s dance.
Justice Pugsley also cautioned lawyers against advising clients to use criminal court processes to achieve objectives that are beyond their reach in family court, such as custody of the couple’s children or possession of the matrimonial home.
In the judgment, which was critical of both police and the Crown, the judge vacated an ex parte order which Stephen Edward Shaw had obtained after having his wife Alison Shaw arrested for assault. The order gave him exclusive use of the matrimonial home and custody of their children, aged 7 and 2.
Justice Pugsley said that although the alleged assault occurred at the dance on Feb. 9, the husband did not ask police to charge her until March 11, after surreptitiously viewing his wife’s e-mail and going to a lawyer who he said told him to have his wife charged. She was arrested, held overnight, and released on $5,000 bail only after being bound by the order, which Justice Pugsley said “effectively granted exclusive possession of the couple’s matrimonial home to the father. Further, Ms. Shaw, a 40-year-old adult with no prior criminal history, was required to reside with her surety and be amenable to the rules and discipline of the home; to abide by a curfew; and not to access the Internet.”
Noting that the assault charge involved “what was in effect a one-punch bar fight over a month before, where her target was her spouse,” he said the case “illustrates the danger of speedy or discretionless criminal procedure.”
Terming the wife’s story “commonplace,” Justice Pugsley said it did not show “the police, the Crown, counsel or the criminal judicial system in a good light.”
Based in Orangeville where he handles both criminal and family law cases, Justice Pugsley said an accused spouse is invariably barred from his or her home and prevented from exercising custody of, or access to, the couple’s children, without any consideration of the factors a family court must apply in determining custody or access.
“This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada,” the judge wrote. “Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.”
However, the criminal court process “often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so.”
He said routine orders excluding a party from the common home without a remedy short of a bail review “place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. 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 innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.”
Justice Pugsley said that although he didn’t know what advice the unnamed lawyer had given the husband in advising him to have his wife charged, “I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.”
In addition to vacating the ex parte order, he issued a temporary order for joint custody of the children, aged 7 and 2. Under the order the spouses have custody on alternate weeks. Both counsel at the hearing praised the judge’s reasoning.
The father’s counsel, Brampton lawyer Ross Milliken, told The Lawyers Weekly other family law lawyers have described the judgment as “long overdue.”
He added that although he had asked that his client be given interim custody, the judge’s ruling “seems to be working. The parents have been co-operating and there have been no problems.”
Milliken, whose practice includes both family and criminal law, said he often finds himself representing accused spouses. He had been retained that day by a wife who was arrested “for throwing a telephone at her husband.” But unlike Alison Shaw, she had been released on her own recognizance.
The wife’s counsel, Orangeville lawyer Gillian Shute, took no credit for the judge’s extensive analysis and citing of case law, advising The Lawyers Weekly that the client retained her less than a week before the court hearing. She, too, said such occurrences were commonplace.
She said the client “felt she had no option” but to accept the ex parte order’s terms.
A zero tolerance policy is indicated in the Ontario Crown Policy Manual, which says that whether or not a complainant agrees, “all such assaults shall be prosecuted with vigour.”
A spokesman for Attorney General Chris Bentley denied that the policy amounts to zero tolerance, requiring only that domestic violence be treated “very seriously.”
Brendan Crawley told The Lawyers Weekly the “clear policy direction on handling these cases” includes discretion in the form of Crown vetting.
He said public safety, “including that of the victim,” was the “paramount consideration.”
Reasons: Shaw v. Shaw,  O.J. No. 1111.
Source: The Lawyers Weekly
Addendum: Over a year later the Toronto Star carried the story, with additional opinions from family lawyer Philip Epstein.
Domestic abuse law blasted
Authorities 'overreact' as warring couples use zero-tolerance rule to gain upper hand, lawyer says
August 28, 2009, Susan Pigg, Living Reporter
Ontario's "zero tolerance" policy on domestic violence has come into question following an unusual court case involving an Orangeville-area woman who was charged with assault after joking in emails that she could solve her marital problems with a gun, if only she could get one.
Alison Shaw, 40, was forced out of her home and ordered to stay away from her three children after her estranged husband claimed to have been "frightened" by the online missive, which followed what a judge described as a "one-punch bar fight" over a month earlier in an area Legion hall.
The ruling is unusual on two fronts:
It's a twist on what men's rights groups claim divorcing fathers have been suffering for years at the hands of police and the criminal court system. And it's creating buzz in legal circles because a well-respected family law expert who helped draft Ontario's so-called "duty to report" policy 30 years ago now says it needs a review and better use of discretion.
"This is a gross overreaction by the Crown and by the police in response to what they thought is the zero-tolerance rule," says Philip Epstein, a veteran divorce lawyer who sat on the committee that crafted the 1979 directive.
"We know so much more about domestic abuse now than we did back then. It's time to re-examine the policy and create some limited discretion for the police and Crown attorneys to deal with this problem," he said.
Criticism of Shaw's treatment first arose more than a year ago in a family law decision from Ontario Court Justice Bruce Pugsley, who said it's "commonplace" for the criminal justice system to be manipulated by estranged spouses claiming abuse, "no matter how remote the assault may be in time or, indeed, how trivial the contact."
Epstein has highlighted the decision – and his concerns – in the recently released Reports of Family Law, a critique of interesting or unusual family law judgments. He and other lawyers have praised Pugsley as being the first judge to so clearly tackle the thorny issue of how some warring couples use the criminal courts to get custody of their children and gain the upper hand in divorce cases.
The way such allegations are handled by police and Crown attorneys can have "the disruptive force of a hand grenade" for families, Pugsley said, setting in motion a chain of events that can wreak "havoc" on children.
Shaw's treatment was fairly typical: She had no criminal record, was charged and held in jail overnight until she could post $5,000 bail, and ordered to stay away from her home and kids "without any regard for children's best interests," the judge said. Her bail conditions also restricted her from using the Internet.
"This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada," said Pugsley, a point Epstein also stresses. But "the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light."
Shaw and her husband, Stephen, were estranged, but still living in the same house, when he hacked into her computer in late 2007 looking for evidence of an affair. Instead, he found what Pugsley described as "vile language" and "gossipy joking" in an email to a girlfriend that talked about "solving her matrimonial problems with a gun, if she could only get one."
The husband reported them to police, as well as an incident over a month earlier in a bar in which she is alleged to have punched him. He returned to ask police to lay a charge of assault after meeting with a lawyer.
"I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother's transgressions to the police," Pugsley said in his ruling.
While Epstein says false or trumped-up allegations are rare, and domestic abuse remains a "very, very serious and real issue," they can unfairly cripple an accused legally and financially because Ontario's court system is so slow and overburdened.
He added the legal aid system is so cash-strapped, it can take eight months to a year for a criminal case to be decided.
During much of that time, the parent has no access to their children. (Pugsley moved quickly to give Shaw 50/50 access to her kids on alternating weeks.)
Epstein had one case where a wife alleged abuse and then started clearing valuables out of the house while her husband awaited a bail hearing. Some men have started fighting back, says one lawyer whose female client is being threatened with a $250,000 wrongful prosecution suit by her ex-husband.
Domestic violence experts such as University of Western Ontario professor Peter Jaffe says the research is clear on what constitutes domestic abuse, but more training of police and Crown attorneys is needed. In fact, they point to what they consider a far more worrisome trend: Police who are simply throwing up their hands, charging both partners, and leaving it up to judges to sort it all out.
"The number-one problem in 2009 isn't minor allegations that are blown out of proportion or the potential for false allegations. The number-one problem in Ontario in 2009 is that there are still 30 to 35 domestic homicides a year and that so many people are being abused and not seeking help," says Jaffe.
Source: Toronto Star