Representing the Same Interest: What Every Family Law Lawyer Needs to Know about Criminal Law

• Author: Todd B. White
• Pages: 457-478

Representing

the

Same Interest:

What Every Family

Law

Lawyer

Needs

to

Know about Criminal

Law

Todd

B.

White

A.

INTRODUCTION

The

relationship between

family

and

criminal

law is a

complex one.

Al-

though

certain criminal

offences

commonly occur

in the

context

of

fam-

ily

law

disputes/

the

family

law and

criminal

law

issues

and

procedures

differ

markedly within

this

context.

A

spouse

or

former

spouse

who

must simultaneously

face

the

col-

lapse

of a

marriage

and a

criminal prosecution

on

charges

of

spousal

or

child abuse cannot

be

expected

to

have

the

capacity

to

coordinate

efforts

between

his

criminal

and

family

lawyers. Nonetheless,

the

successful

resolution

of

both

family

and

criminal matters necessitates continued

cooperation

and

communication between

an

accused

spouse's

respec-

tive counsel. Unfortunately,

the

relationship between

the

client's crimi-

nal and

family

lawyers

is too

frequently characterized

by

disinterest,

misunderstanding,

and a

complete lack

of

communication.

As I

hope

to

demonstrate

in

this short paper, there

are

many benefits

of

success-

ful

collaboration between

family

and

criminal practitioners

and of the

*

Todd.

B.

White

is a

partner with Greenspan, White

in

Toronto.

The

author grate-

fully

acknowledges

the

valuable assistance provided

by

Tyler

W.

Hodgson

and

Taryn

McCormick

for

their contributions

to

this paper.

i In

addition

to

domestic abuse

and

child abuse charges, some

of the

criminal

of-

fences

that

commonly arise

in the

context

of

family

law

disputes

are

breach

of a

court

order, abduction

of a

child,

and

kidnapping.

457

458

TODD

B.

WHITE

education that each

can

provided

the

other. Neither

the

family

nor the

criminal

practitioner

can

afford

to

view

her

representation

of the

same

client

as

separate

or

isolated.

The

first

part

of

this paper will examine

the

fundamentals

of

crimi-

nal

practice

and the

criminal charge

in a

family

law

case, examining

the

concepts

of the

laying

of a

criminal charge,

the

subsequent

criminal pro-

cedures,

the

presumption

of

innocence,

and

typical conditions

of

judicial

interim

release.

The

second part

of

this paper will analyze

the

impact

of

criminal proceedings

and

concepts

on

family

law

arrangements, such

as

exclusive

possession

of the

matrimonial home.

In the

final

section

of

this

paper,

I

will examine

the

benefits

of

cooperation between

family

and

criminal

lawyers,

and

offer

some practical suggestions

to

assist

family

law

lawyers

in

working through

the

successful

resolution

of

family

law

matters that involve criminal allegations.

B.

THE

PRESUMPTION

OF

INNOCENCE

Family

lawyers should always remember that

an

allegation

of

spousal

or

child abuse

is

merely that

—

an

allegation. Whether

you are

acting

for

an

alleged abuser

or an

alleged victim (spouse

or

child),

an

allega-

tion should

be

taken seriously,

but

must

be

approached

from

any and all

sides

objectively,

dispassionately,

fairly,

and

with caution

and

restraint.

An

accused person

is not an

abuser

or a

criminal unless

and

until

her

guilt

has

been proven beyond

a

reasonable doubt.

A

victim,

as a

mat-

ter of law and as a

matter

of

fundamental fairness,

is not a

victim unless

and

until

the

crime

has

been proven beyond

a

reasonable doubt.

In

fact,

it

must

be

remembered

that

there

is a

legal

and

constitutional

rule

that

presumes that

no

crime

has

occurred

and

that

an

accused

is

innocent

unless

and

until proven guilty.2 This presumption

of

innocence

is the

key

to

understanding

and

working through

a

criminal prosecution and,

as

well, through

the

related

family

case. This presumption should

be

borne

in

mind

by all

sides

in a

family

law

matter that involves criminal

allegations.

The

presumption

of

innocence

has

been described

by the

judiciary

as "a

hallowed principle lying

at the

very heart

of the

criminal law"

and

the

"golden thread"3 woven throughout

the web of the

criminal

justice

2

Criminal Code,

R.S.C.

1985,

c.

€-46,

s. 6.

3 R. v.

Oakes

(1986),

24

C.C.C.

fcd) 321 at

333-34

(S.C.C.).