Intimate Partner Violence: How It Affects Criminal Law and Family Law
By Kristy Hansen | March 31, 2023
with the assistance of law student Hannah Smith
This is part two of a three-part series on intimate partner violence (IPV), also known as domestic violence.
In our first blog, readers were provided with a broad overview of what IPV is as well as some potential resources available for survivors of IPV who are facing family law issues.
In this blog, we will examine how IPV intersects with both criminal law and family law. It is possible that your situation encompasses both areas of law, which can lead to confusion.
In our third blog, we will go into more detail about how IPV can impact children, and how family law takes IPV into account when making court orders involving children.
It is important for us to acknowledge that these articles will only provide broad overviews of these topics, which are expansive. There are many valuable resources and supports for those seeking more in-depth information.
Criminal Law and IPV
In many cases of intimate partner violence, parties will be involved in both the criminal law and family law systems, sometimes in court for both. For example, think of a situation where a person has been charged with physically or sexually assaulting their partner and, as a result, the parties separate and must determine their future parenting arrangements.
In a situation such as this, the abuser is often charged with assault (and perhaps other charges). The abuser may hire a criminal defence lawyer in order to be represented in the criminal law proceedings, or the abuser may be represented by a lawyer provided to them by Legal Aid, or they may choose to be self-represented. There would also be a Crown Attorney involved – this is a lawyer who represents the province (the government) by presenting the case against the abuser to the court. What victims are often surprised to learn is that there will be no lawyer involved in a criminal case to advocate for them. The victim may have contact with the Crown Attorney, and give their evidence to the Crown Attorney, but the Crown Attorney is limited to advancing only the overall “interests of justice,” not the personal rights of the victim.
Instead of having a lawyer advocate for them, the victim is involved in the court proceeding only by giving their evidence about what happened to the police, Crown Attorney, and/or the court. These individuals are often not well-trained to work with victims. Information given by the victim is almost always shared with the court and the abuser.
This scenario is based on an instance where a victim was physically and sexually assaulted and one or more criminal charges were laid against the accused. Unfortunately, there is no specific criminal charge for “intimate partner violence.” Instead, criminal charges against the abuser will fall under other areas, such as assault, forcible confinement, uttering threats, threats, damage to property, trespassing, etc. The focus of criminal law proceedings is to determine whether the abuser is guilty (and the threshold is the higher standard of “beyond reasonable doubt”) and, if so, to sentence them accordingly. There is an emphasis on “punishment” and “deterrence.”
Although the criminal law system itself is not focussed on the victims of crime, there are supports available. As one example, Thunder Bay and Area Victim Services states as its mandate that they provide confidential support, education and referral services to victims of crime and tragic circumstances. You can learn more about them here: http://www.tbayvictimservices.ca
Family Law and IPV
In the same scenario, the victim and the abuser will also be faced with family law issues when determining the parenting arrangements for their child(ren). Often, parties will need to hire lawyers and ask the court to assist with findings about who can make decisions for the children, what the parenting schedule will look like, who will pay child support and how much, etc. Sometimes, a victim may want to consider restraining orders or supervised parenting, depending on the type of violence, and whether the children were directly involved, or exposed to it.
Unlike in the criminal system, when you are a victim of IPV your family lawyer will be representing you and defending your legal interests. Communication between you and your family lawyer is confidential, and will not automatically be shared with the abuser or the court. The abuser may also have a family lawyer as well (who they have either hired privately or through Legal Aid), representing them and defending their legal interests, or they may choose to be self-represented in the family matter.
Family law courts are not focused on findings of guilt or punishment. Instead, they are focused on the issues resulting from your separation and, where children are involved, they will consider IPV in their analysis of what is in the best interests of the children.
As of March 2022, legislation in Canada and Ontario has changed to require courts to consider family violence when making any decisions about post-separation parenting issues. As a result of these changes, your family lawyer’s legal advice to you may be different in instances where IPV is or has been present. It is possible that emergency measures should be put in place to protect you, your child(ren), and/or your property. If you had an agreement or Order that was finalized pre-March 2022, you should talk to your lawyer about having it reviewed.
In family law court proceedings, the definition of intimate partner violence is expansive. The judge will not only consider the type of violence that may lead to criminal charges, but also verbal abuse, emotional abuse, financial abuse, harassment, controlling behaviour, manipulation, and more. It is important that you tell your family lawyer as much as you can about your situation so that the lawyer can help you determine the best course of action.
In our final blog on IPV, we will discuss in more detail how IPV can impact children, and how courts will consider this when making Orders involving children.
Accessing legal assistance and disclosing IPV can be an essential part of escaping and healing from the IPV you are experiencing. At Henderson Family Law, we strive to provide a safe and supportive environment for survivors who seek our assistance with their family law issues. Please contact us to learn more.
DISCLAIMER:
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.