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The issue of domestic violence is a serious and longstanding problem that has caused lasting trauma to the victims. However, as explored in the recent episode of the Not On Record Podcast, EP#66 | Navigating the Intersection of Family Law & Criminal Law, the family law system has been weaponized and used in conjunction with the criminal justice system. This has led to a significant change in the way family law cases are being litigated, particularly in cases of family violence. This article explores the intersection between family law and criminal law, with a focus on the recent judicial recognition of the tort of family violence.
Recognizing the Tort of Family Violence:
In February 2022, the Ontario Superior Court of Justice recognized the tort of family violence in the case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303. This tort allows a family court litigant to seek damages for the claim of a history of family violence arising from a relationship, which would normally be a separate civil case. The mother in this case was able to claim damages for the father’s alleged abuse during the marriage, which was recognized by the judge as the basis for the tort of family violence. This is a significant change, as damage awards normally subject to civil claims are now being made in family law cases – which was formerly unheard of in these types of cases.
The Intersection Between Family Law and Criminal Law:
The recognition of the tort of family violence has led to a significant change in the way family law cases are being litigated. It has also highlighted the intersection between family law and criminal law. Domestic violence is a criminal offence, and the family law system has a role to play in protecting victims of domestic violence. The criminal justice system is crafted to ensure a fair and just process for individuals facing accusations of domestic violence, while the family law system strives to offer comprehensive support and protection to those who claim to be victims.
Judicial Activism and the Separation of Powers:
The recognition of the tort of family violence raises questions about judicial activism and the separation of powers between the judicial and legislative branches of government. Judicial activism occurs when judges interpret the law in a way that goes beyond the text and intent of the law. In this case, the judge created a common law liability in the family law sphere for family violence, rather than relying on the normal legislative process to amend the law. This has implications for the separation of powers between the judicial and legislative branches of government, as the judiciary is not supposed to make law, but rather interpret it.
The Weaponization of Domestic Violence Claims in Ontario: Preserving the Rights of the Accused:
As discussed in Not On Record Podcast, EP#66 | Navigating the Intersection of Family Law & Criminal Law, the recognition of family violence in family law cases has brought attention to the complex intersection between family law and criminal law, as well as the delicate balance of powers. It is imperative to acknowledge the gravity of domestic violence allegations and how these criminal allegations can be weaponized for advantage in family court.
The criminal justice system must conduct a thorough examination of evidence and ensure a fair and unbiased process for both the accused and the alleged victims. In cases where the emotional nature of family court proceedings spills into the realm of criminal law, it becomes even more crucial to safeguard the rights of the accused throughout the legal proceedings. Our ultimate goal in criminal law is to uphold justice by meticulously scrutinizing evidence, holding all parties accountable, and adeptly navigating the intricacies inherent in domestic violence cases, all while safeguarding the fundamental rights of the accused.
Neuberger & Partners LLP has a highly skilled team with extensive experience in successfully navigating cases involving domestic violence. Collaborating closely with family lawyers, we understand the intricate dynamics at play in these sensitive matters. With over 30 years of criminal defence experience, our firm is well-equipped to provide you with the necessary guidance and effective representation as you navigate the complexities of the criminal justice system. Put your trust in our expertise and approach your case with confidence.
