What are the differences between criminal and family court for abused women?

Many women who are dealing with family court are also involved with criminal court proceedings, as either a victim/witness or as an accused. There are a number of differences in the purpose, function and outcomes of the two courts as well as in the role of the woman.

When supporting women in family court, it is important to know whether or not they are also involved with criminal court, no matter the circumstances, and to determine what, if any, support they may require with respect to those proceedings. The two courts do not communicate with one another, so you may be able to assist in ensuring that appropriate information is shared between the two systems, in helping the women access whatever criminal court related services are appropriate and in helping her understand the impact of proceedings in one court on proceedings in the other.

As a Victim/Witness

The abuser may have been charged as a result of the violence, whether or not the woman wanted him to be (see our mandatory charging FAQ). If this is the case, she will be required to testify and will be able to use the services of the Victim/Witness Assistance Program (V/WAP), which can provide her with information about the criminal process and her abuser’s case, connect her with community services and support her as the case moves along.

She is not a party to the proceedings, has no legal standing in the case and does not have the right to a lawyer (or legal aid). The Crown Attorney, who is the lawyer prosecuting the charge(s) against the abuser, will accommodate the woman’s needs and wishes as much as possible, but is not her lawyer. There is no lawyer-client privilege (confidentiality) associated with her relationship with the Crown. Indeed, the Crown is required to disclose anything the woman says or provides to the accused or his lawyer.

As an Accused

If the woman has been charged (see our dual charging FAQ), she can access a lawyer, with the support of a legal aid certificate if she qualifies financially and if her case meets the legal aid criteria. She may not be able to access the services of the Victim/Witness Assistance Program if she has been charged, although some V/WAPs use a primary aggressor approach when both partners have been charged.

Purposes of the Courts

Criminal and family courts have very different purposes, which can create uncertainty and confusion for a woman who is dealing with both at the same time.

Criminal court is the place where people who have been accused of a criminal offence are held accountable. The Crown Attorney presents evidence against them and, if it meets the required standard of proof, the accused person is found guilty and appropriate consequences (probation, fine, jail time) are ordered by the judge.

Family court is not about guilt or innocence. The purpose of family court is to determine all the issues that arise when family breakdown occurs: how children will spend time with their parents, how parents will provide financial support for their children, how family property will be divided up and so on.

The victim of the crime does not have a prominent role or official standing in a criminal proceeding. Decisions about how the case should proceed are made by the Crown Attorney (who is not the victim’s lawyer), the defence lawyer, and the judge. In family court, both people are parties and make the decisions about how the case proceeds. There is no Crown Attorney in family court – the parties may have lawyers or may represent themselves.

Legal Tests

Not only do criminal and family courts deal with different issues, they apply different legal tests. In criminal court, the judge must find that the evidence proves the guilt of the accused beyond a reasonable doubt. This is the highest standard of proof of any court because a finding of guilt can result in the accused losing his or her liberty by going to jail.

In order for an accused to be found guilty, the evidence must establish that there is no reasonable explanation for what happened other than that the accused did it. If there is any other reasonable explanation, the accused will not be found guilty.

In family court, the standard of proof is on a balance of probabilities, which means the judge determines whose story is more believable. For instance, a man could be charged with assault but not convicted in criminal court because the evidence was not sufficient for the judge to believe, beyond a reasonable doubt, that he committed the assault.

If his partner raises the assault in family court, whether or not he was convicted (or even charged), the family court judge could make a decision to grant her a restraining order or sole custody because s/he believes the woman’s story about the abuse is more believable than the man’s. The fact that he was not convicted in criminal court is not determinative in the family court proceeding.

Outcomes

Outcomes in the two courts are also different in the sense that criminal court outcomes can include a punishment for the accused if he is found guilty, whereas, even if family court outcomes might feel like a punishment some of the time, they are not in a formal sense. No one goes to jail because of what happens in family court.

The differences between the two systems lead to challenges.

Orders can conflict with one another. In particular bail conditions imposed in criminal court may conflict with existing access or restraining orders in family court.

Generally, there is a lack of communication between the courts. The judges are different and may not even know that a proceeding is underway in the other court. Information is not shared because of privacy issues for the accused.

You can play an important role in helping women who are involved in both court systems to understand the differences and challenges and to connect with appropriate criminal court services such as V/WAP or, if she has been charged, duty counsel and legal aid.

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