WES KELLER, Orangeville Citizen
In what is likely to be seen as a landmark case, Ontario Court Justice Bruce Pugsley has found that the criminal court system was misused by a father to gain custody of his children in a marriage that was “inevitably” doomed.In a 10-page written judgment, Judge Pugsley found that although Alison Shaw may have slapped her husband, Stephen Edward Shaw, during a Feb. 9 dance at the Shelburne Royal Canadian Legion, Mr. Shaw initially didn’t want to press charges and waited at least a month before he sought legal advice and then reported the alleged assault to the Shelburne Police Service.
Following a no-tolerance policy in domestic violence cases, the police promptly arrested Mrs. Shaw and held her in custody overnight. She was released on $5,000 bail the following day, but denied access to the matrimonial home or her two children, aged 5 and 2, as conditions of her bail.”Inexplicably, although charged with what was in effect a one-punch bar fight over a month before, where the target was her spouse, the mother was arrested and detained in custody for a bail hearing, the next day,” the judge wrote. He found that Mrs. Shaw, 40, had no prior criminal record.
“The presumption, as I understand it, is that the lowest form of available release appropriate to the charge and the defendant should be applied – on a range from a promise to appear to a fullblown bail hearing,” he continued.”There is nothing on the record that I have seen in the family law proceeding – including the father’s affidavits and the exhibits attached thereto – that would have prevented the release of Ms. Shaw from the station house, at the highest by the officer in charge, on an undertaking with terms.”Prior to the incident, Mr. Shaw suspected his wife of having an affair. In the fall of 2007, he secretly installed a device in the couple’s home computer for the purpose of tracking Mrs. Shaw’s e-mail correspondence. Although the e-mails did not uncover evidence of an affair, Judge Pugsley found that letters to her female friend were critical of Mr. Shaw in vile language, and indicative of a troubled marriage.
While Mrs. Shaw was on bail, Mr. Shaw succeeded in obtaining an interim custody order. Judge Pugsley found that the family court matter of custody “came before the court with staggering rapidity.”Mr. Shaw moved for an order without notice on 12 March 2008, the day after the arrest of Ms. Shaw. Justice (Douglas) Maund granted an order, triggering a speedy review of the order made on only part of the factual story.”
He said Judge Maund’s order anticipated that the father would grant the mother “immediate and generous” time with the children. She was, however, allowed only one 30-minute visit on March 16.Judge Pugsley found that Mr. Shaw was a jealous and controlling husband, and that the criminal court had made a custody ruling that rightly should have been within the purview of the family court. He also noted that in such cases the criminal justice process takes no account of the best interests of children.He was also highly critical of the husband for secretly taping his wife’s on-line chats, and cited a similar-case finding by provincial Justice Stanley Sherr: “Surreptitious recording to telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them….”
Apart from the conflict in the Shaws’ marriage, Judge Pugsley found that the couple had shared equally their resources and time to care for the children of the marriage.In his judgment, he varied the bail order such that Mr. and Mrs. Shaw will have 50-50 custody of the children. As they are not allowed contact with each other under the bail order, the exchanges of the children are to be at the Shelburne police office.
The Pugsley ruling was featured prominently in Wednesday’s Globe and Mail, where justice reporter Kirk Makin quoted family law practitioners welcoming it.Robert Rotenberg , a Toronto lawyer who has acted in many similar disputes, said the ruling has been a long time coming.”This is the judgment I’ve been waiting 10 years to see,” he said in an interview. “I have seen so many people stuck in bail courts needlessly – often for days – and parents who are not able to see their kids because of ridiculous bail conditions. And who suffers most? The children.”
Family lawyer Marvin Kurz was quoted as saying the judgment drives home how destructive assault charges and the ensuing bail conditions – usually decided by justices of the peace – can be. “A JP has as much business deciding interim custody of a child as a doctor has diagnosing a patient’s spouse.”
There is to be a continuation of the family law hearing on June 11.
