Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective

IV. Concurrent Child Protection & Family Proceedings

While concurrent child protection and family proceedings may, at least in part, be based on the same incidents of alleged abuse or neglect, the proceedings differ in very significant ways. The following discussion compares the child protection and family processes, and considers the complex challenges that arise if there are concurrent proceedings.

A. Comparing the Child Protection and Family Processes

If parents have separated and are unable to agree about custody or access, either parent can bring an application under provincial legislation (like Ontario’s Children’s Law Reform Act) or the federal Divorce Act (if the parents were married) for custody or access based on an assessment of the “best interests of the child.”  Allegations of violence will be relevant to the determination of the “best interests of the child”, for determination of both custody and access.

Exposure to intimate partner violence that comes to the attention of child protection authorities will usually trigger an investigation and possibly intervention, and increasingly, high-conflict family cases, including those involving allegations of alienation and estrangement, are also seen as within the mandate of CPAs to investigate.  Child protection and family proceedings have many similarities, but some significant differences, described below.

Jurisdiction, burden and standard of proof

Both family and child protection proceedings are civil proceedings, subject to the same burden of proof (on the applicant – in family matters, the person commencing the application; in child protection matters, the child protection agency) and the same standard of proof (balance of probabilities).  In jurisdictions with Unified Family Courts, child protection and family proceedings will be heard in that court (which has Superior Court jurisdiction).  In most other jurisdictions, child protection cases and custody/access cases which do not involve divorce actions are heard in Provincial Court, while proceedings under the Divorce Act are heard in Superior Court.

An order made under provincial child protection legislation, even in a Provincial Court (like the Ontario Court of Justice), will supersede a prior order made under the provincial family legislation or the Divorce Act, even if made by a Superior Court judge, since under the child provision statute the court is exercising a state mandated protective jurisdiction.Footnote 16 

Focus of the proceeding and relevance of IPV

Intimate partner violence is explicitly identified as a factor to be taken into account in proceedings to deal with custody and access in Ontario, Alberta, British Columbia and most other provinces;Footnote 17 much of this legislation was enacted in the past two decades. The provisions of the federal Divorce Act dealing with custody and access have not been substantially amended since they came into force in 1986.Footnote 18  It has been suggested that the Divorce Act and similar provincial legislation should be amended to take specific account of family violence as a factor in making custody and access decisions, including concerning joint custody.Footnote 19  While it seems generally accepted in Canadian jurisprudence (if not appreciated by all lawyers and litigants) under the Divorce Act that proof of intimate partner violence is a factor in custody and access cases, many of those affected by the legislation, especially self-represented litigants, may not be aware of the significance of intimate partner violence.

The legal basis for child protection agency involvement is that a child is in “need of protection,” as defined in the applicable provincial or territorial child protection legislation. While there is some variation in the definitions, all child protection statutes in Canada include emotional or psychological harm or abuse as a basis for CPA involvement; in a number of jurisdictions including Nova Scotia and New Brunswick exposure to intimate partner violence is an explicit ground for agency involvement, and it is now accepted in other jurisdictions that exposure to intimate partner violence is an aspect of psychological or emotional abuse or harm. A child protection proceeding will be commenced by a CPA when its staff believes that a child is “in need of protection,” and the parents cannot adequately care for a child without some form of intervention (either removal of the child from the parents’ care, removal of one parent from the home, or the imposition of conditions on one or both parents). 

A CPA may become involved with a family because police, teachers or medical treatment providers report concerns about the child’s exposure to violence.  They may also become involved in a high-conflict parental separation case because one or both parents report to the agency that they believe that the other parent (or a new partner) is abusing or neglecting the child. Although these reports may well be true, and must of course be investigated, in some cases the reported allegations are exaggerated or false.Footnote 20 The fact that such allegations are being made, however, raises concern that this may be a high-conflict separation that is causing emotional harm to the child.Footnote 21 

While children are invariably emotionally distressed by parental separation, in most separations not involving intimate partner violence, the distress of the children is not sufficient to constitute “emotional abuse” within the definition in child protection statutes.  Thus the “ordinary” emotional distress that children and adolescents commonly experience as a consequence of their parents’ separation will generally not meet the necessary test for finding that child in need of protection.Footnote 22 The same evidence of instability and emotional distress that would lead a family court to award custody to one parent over the other may not justify CPA involvement.Footnote 23

However, in more intense high-conflict separation cases, exposing a child to a high-conflict separation may be emotional abuse for the purpose of child protection legislation, even if there is not familial violence that meets the threshold for criminal conduct.

In child protection cases, the courts face two distinct questions, and in some cases will actually divide a trial into two stages: first determining whether the child is in need of protection, and then, and only if that finding is made, considering what disposition is in the best interests of the child. In child protection cases based on concerns arising out of high-conflict separation or intimate partner violence, the determination that a child is in need of protection can be sought on the basis of emotional harm or risk of emotional harm.Footnote 24 In these cases, if it is established that a child has suffered “emotional harm,” as defined in child protection legislation and the child is found to be in need of protection, then, and only then, the court will consider an order that promotes the child’s best interests.  Under child protection legislation courts must generally make the least intrusive order that will protect the child, which will mean considering leaving the child with her parents but under agency supervision before consideration is to given to an out-of-home placement.  Further, placements that keep the child with family members under CPA supervision are preferred to placing the child in foster care or for adoption, provided that the relatives can provide adequate care and protection. 

In custody and access disputes between parents, however, there is only one issue: what is in the child’s best interests. Consideration of a child’s emotional well-being and possible emotional harm caused by family violence or conflict is directly relevant to the inquiry into a child’s best interests.  Issues of emotional harm from being exposed to intimate partner violence will therefore be considered when making or varying custody and access orders. Consideration of the nature and effect of emotional harm may also affect conditions that may be placed on the exercise of custody and access rights.

Legal representation

A family proceeding is a private, civil action.  The parents are responsible for bringing forward evidence and paying the costs of litigation. The court is entirely dependent on parties to bring forward evidence of intimate partner violence and associated expert evidence; legal representation is extremely costly, especially if a case proceeds to trial, and most parents are not eligible for legal aid  (in some jurisdictions, victims of IPV may be eligible for legal aid in family proceedings).Footnote 25

Child protection proceedings, by contrast, are initiated by a state agency; the state pays the costs of the litigation by the agency, and legal aid often, but not always, covers the costs of litigation for the parent.   Where legal aid is denied and the parent cannot afford counsel, the Charter requires that state-funded counsel be appointed; there is no corresponding requirement for state-funded counsel for indigent parents in family proceedings. Footnote 26

Resources to prove IPV or responsibility for alienation and high conflict

Family violence is considered relevant to determining what is in the interests of the child in family proceedings, but the onus is on the victim-parent to prove a history of violence.  Often victims lack the resources and energy to prove that violence occurred, and may not even make the allegation due to a belief that it will not be believed or out of fear of retaliation by the abusive parent. Although police, child protection workers, doctors or other professionals can testify about their involvement with the case in a family proceeding, the victim must be able to prepare and introduce their evidence, which, for many victims, may be practically impossible without a lawyer. In many IPV family cases where there is no independent source of evidence of violence, the case will come down to a credibility contest between the parents, both of whom will have interest in the outcome that may be seen as affecting their credibility.  Self-representation is becoming increasingly common in family cases. If the parties do not have representation, they will have to deal with one another directly, including the daunting prospect that the victim may have to examine her abuser in court and then be cross-examined by him.Footnote 27

In contrast, in child protection cases it is the CPA, not the victim parent, who has the burden of proving IPV or other circumstances of high conflict leading to emotional harm to the child.  While these public agencies face serious budget constraints, once they are involved in litigation, the agency may conduct the case without immediate financial constraints, with a much greater ability to retain counsel and experts than most parents.    Moreover, the social worker will usually be seen as a more or less independent witness, particularly when reporting on statements made by the parents or children.

Interim and Urgent Orders

In a high-conflict separation case, especially if it involves intimate partner violence, the period immediately following separation can be particularly volatile, with risk of escalating parental conflict and serious violence.  It is very important that the parents have expedited access to the family courts in these cases so that a judge can bring some stability to the situation, prevent further victimization and protect the interests of the children. However, the dominant trend in family cases is to encourage attempts at negotiation and mediation before judicial action is taken.  This is, for example, reflected in Rule 14(4.2) of the Ontario Family Law Rules, which requires a case conference prior to a motion for interim relief, except in “urgent” cases.Footnote 28  While a case conference is often a valuable opportunity for a judge to encourage a settlement – and may be an occasion for what is in effect judicial mediation – a judge at a case conference can only make an order on consent, and having a conference will delay the possibility of court ordered relief.

In principle, it is now well accepted that cases involving allegations of intimate partner violence must be expedited in the family justice process, though in practice it can take a significant time for a victim of violence to obtain proper advice, begin court proceedings, appear in front of a judge and obtain an order.   More recently there has been some recognition that high-conflict cases involving issues of emotional harm and potential alienation also need to be addressed in an expedited fashion before a child’s attitudes and behaviors become entrenched.Footnote 29

Even when a high-conflict case gets to court for an “urgent motion,” it is often a real challenge for the courts to make sound decisions at an interim motion since the evidence is based on often conflicting affidavits.  This can be a critical stage in the family justice process, and it is important that child protection agencies and police are able to provide any known information about the family to the judge dealing with the case.

In child protection proceedings, agency staff are authorized to remove a child from a dangerous situation immediately (in most jurisdictions with the expectation of a warrant where reasonably obtainable), and a hearing regarding the temporary care and custody of the child must be held within a short period (usually 5 to 10 days depending on the jurisdiction) of the apprehension.  In most cases of IPV and high conflict, the CPA will not apprehend the child, but will seek an order of supervision placing the child with one of the parents, usually with restrictions on the other’s access; unlike in many family proceedings, no case conference is held prior to this initial motion being heard.  Like family proceedings, these motions are usually done based solely on affidavit evidence, but the court will usually find the affidavit of the CPA worker to be inherently more reliable than a parent’s affidavit.  One of the many ways in which the CPA holds a significant advantage over the parent is that the CPA will be represented at this initial stage, while the parent usually is not.  (Interim child protection orders are usually initially made “without prejudice” to permit later variation once the parent has counsel and can argue the motion fully.)

To date, seven provinces (Alberta, British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and Saskatchewan) and three territories (Northwest Territories, Yukon and Nunavut) have enacted legislation that provides victims of family violence with expedited access to civil orders relating to contact between parents and their children, as well as possession of the home and use of the family vehicle.  This type of statute provides for expeditious access to the civil courts in cases where family violence is a concern, and a criminal response has not been invoked, perhaps because the victim does not want the police and criminal justice system involved or out of concern that the evidence will not meet the much more restrictive “reasonable doubt” standard of proof.   This type of statute provides a greater flexibility for victims.  Research indicates that this type of legislation has value,Footnote 30 and it is a promising practice to allow expeditious access to the justice system to allow civil orders to be made where family violence is at issue, particularly where there is adequate support to allow victims to make effective use of such laws.Footnote 31

Expert evidence in Family and Child Protection Proceedings

Qualified mental health professionals often provide critical evidence about children and parents in family cases involving high-conflict and family violence issues. 

In all jurisdictions, if the parents are able to afford it, the court may order an independent mental health professional to undertake an investigation about the children and prepare a report.Footnote 32  Assessments take time, however, and the parents are required to pay costs ranging from $5,000 - $25,000. Further in many locales there are few professionals qualified to prepare these reports. These issues of expense, delay, and difficulty in finding a qualified professional, mean that many cases are resolved without an assessment. 

In addition to assessments paid by the parties, in some jurisdictions, a court dealing with a family case may request that a government paid social worker or mental health professional become involved in the case to prepare a report, though there may be limits to the extent of involvement that may be provided or long delays before a government paid professional can prepare a report. These professionals provide valuable services and recommendations that assist the court and that can facilitate settlement.

There are concerns about a lack of guidance and uniformity in how assessments are prepared.  More fundamentally, there are concerns about the lack of education and training for the mental health professionals who undertake assessments; there is no designated set of qualifications in any Canadian jurisdiction.Footnote 33 In particular, while many of these professionals are highly knowledgeable, there are concerns that some mental health professionals who undertake assessments and prepare reports for the courts do not fully appreciate the effects of intimate partner violence on children,Footnote 34 or the special challenges of high-conflict separation cases.  Experts who provide opinions for the family courts need appropriate education and training, in particular for understanding the effects of high-conflict separations and family violence on children as well as the dynamics of high-conflict separations, and preferably should have on-going supervision and monitoring of their work by a government agency (like the Ontario Office of the Children’s Lawyer).

Expert evidence from qualified mental health professionals is also often important in child protection cases, especially if the case is based on the concept of emotional abuse, but it is not essential.  It is common in these cases for the court to make an order before trial for an assessment under child protection legislation like Ontario’s Child And Family Act s.54 by a qualified, independent mental health professional to better understand the child’s needs, the parents’ ability to provide for those needs, and the effect of their behaviour on their child.  However, expert evidence will not always be required to establish exposure to violence or emotional harm in a child protection case.  In many cases there may be sufficient evidence of harm – usually through the observations and investigation of the child protection worker - to allow the necessary inferences to be drawn without expert testimony.Footnote 35  The cost of the expert will almost always be borne by the CPA, although parents wishing to tender an opposing expert opinion may be required to pay the associated fees themselves, if they are not covered by legal aid.

Counselling and other resources

Courts in both family and child protection proceedings may order counselling and other interventions for either of the parents and/or the child as a term of an order. 

Although there is case law that questions whether courts in custody and access cases have the authority to order parents to attend counselling,Footnote 36 most courts dealing with family cases are prepared to make orders for counselling for both the children and the parents.Footnote 37  It is not uncommon for judges to order that, as a condition of exercising access under family legislation, a parent with a history of intimate partner violence attend an anger management or partner abuse course.   Such conditions for access are appropriate, but as discussed below, if there is significant risk to a child, it may be appropriate to suspend contact with an abusive parent until counselling is completed and risk can be reassessed.

In cases of alienation from a parent, counselling for one or both parents and the child may be directed at changing a child’s relationship with a rejected parent and “reuniting” the child with that parent, or at improving the communication skills of both parents.Footnote 38 However, as Henderson J. observed in Kramer v. Kramer,Footnote 39 orders for counselling should be used “cautiously” as counselling is likely ineffective unless the parents are willing to meaningfully engage in the process, and also encourage their children to do so. 

Orders for counselling and other interventions are very common in child protection cases; indeed, provincial and territorial child protection statutes often require the court to inquire as to what services have been recommended and offered to the parent prior to making any order for placement of the child.  Participation in such interventions is also frequently specified in contracts for voluntary service between the CPA and the family.

In family cases, identifying, engaging with and paying the cost of such interventions is the responsibility of the parties.  CPAs, in contrast, are often able to assist parents in locating and even attending counselling and other services, can advocate for free or subsidize services for families with limited resources, and may be able to provide some services directly.Footnote 40  One example is therapeutic access, in which parents learn and apply parenting skills during structured access visits.Footnote 41

Settlement

Unless a family proceeding is subject to case management, the case will not be automatically returned to court for the next step in the proceeding, but it will be up to the parents to schedule a return date.  In family cases there are often financial or other pressures to settle.  While settlement is often desirable, it will not be appropriate if a victim of abuse agrees to an order that endangers the child or victim.  Where a case settles, there will be no findings of fact made by the court; the judge may simply endorse minutes of settlement without inquiry into whether the order sought is in the best interests of the child.  This is particularly likely in cases that have not been case managed, where the presiding judge may not be aware of any allegations of violence.  Even where a court declines to make the order agreed to out of concern regarding allegations of violence, the victim parent who is exhausted or intimidated may recant or withdraw the case from the court process (formally or by failing to bring the matter back to court); even though the children’s interests may not be adequately protected in such a situation, this removes the court’s ability to intervene, except through reporting to CPA. 

Child protection cases also usually settle, but resource limitations will not be a factor, and the agency will not agree to a settlement that it considers may place a child at significant risk of harm.  Unlike family cases, an order cannot be made without evidence as to the risk of harm to the child and the child’s best interests, although a protection application can be withdrawn with the result that the child returns to the care of the person caring for the child at the time of the intervention.

Enforcement

In family proceedings, it is up to parents to enforce any parenting orders that they obtain, often a frustrating and expensive process.  

As discussed elsewhere in this paper, in cases involving intimate partner violence, there may be real challenges and concerns in ensuring that abusers will comply with orders that restrict contact or communication, and this can create substantial safety concerns. 

There are also distinct but related concerns in ensuring compliance with court orders relating to parenting, especially those giving parents rights to contact or requiring an exchange of care.  Non-compliance with parenting provisions of court orders is common in high-conflict cases, especially those with alienation issues. This in part reflects that alienating parents often persuade themselves that non-compliance is promoting the interests of their children or protecting the rights of their children.

The problems in enforcing orders against abusive or alienating parents reflect a variety of factors, including the relatively high incidence of personality disorders, and distortions in perception in this high-conflict population. In some of these cases, failure of a court to enforce an order only reinforces their narcissism, false sense of power, and disregard for authority. Judges are increasingly aware that enforcement of parenting orders can be very difficult: the law is a blunt instrument and not well designed to the promotion of good parenting, but sometimes court orders are essential to address emotionally or physically abusive post-separation parental conduct.

While a judge may include a provision in an order directing the police to apprehend and deliver the child(ren) to the person entitled to custody or access, Footnote 42 an order for direct police involvement to apprehend or transfer care of children “... is an order of last resort ... to be made sparingly and in the most exceptional circumstances.”Footnote 43

The issue of police enforcement is especially challenging in high-conflict cases involving alienation, where custodial parents and children are resistant to complying with the terms of an access order. Because calling the police is a very intrusive step, alienated parents are reluctant to seek such orders. If the police are actually called to enforce an access order on more than one occasion, serious consideration should be given to other solutions. Even without an explicit “police enforcement clause,” the police have some obligation to assist in the enforcement of any court order, including a custody or visitation order. In practice, however, whether or not there is a “police enforcement clause” in a family proceeding order, without an order from the criminal process or under family violence legislation, police are reluctant to become involved in “family matters.” If the police are contacted by an access parent about the alleged violation of an order granting visitation rights, they may go to the home of the custodial parent to discuss the matter and encourage compliance with the order, but they will be very reluctant to physically remove children from their homes to go on visits with a non-custodial parent. Such police involvement may be very upsetting and intimidating to children, and can seriously affect the child’s relationship with one or both parents.

In child protection proceedings, subject to the control of the court, the agency has very significant powers of enforcement, and the police will enforce a child protection order, though most parents comply with orders to allow access to their children or surrender them to the care of the agency or other designated persons because they are aware of the threat of police enforcement.

Involvement of child protection in family cases

Given the increasing recognition that high-conflict cases can cause harm to children, some courts have considered their authority to require CPA involvement in such cases.  In the 2011 Ontario case of Florito v. Wiggins,Footnote 44 Harper J. invoked the inherent parens patriae jurisdictionFootnote 45 of a Superior Court to order a local Children’s Aid Society to provide services to parents in a high-conflict parental custody dispute being resolved under family legislation.  Justice Harper concluded that there was a “legislative gap” that the court should address: in some regions of Ontario there are unified Family Courts with a jurisdiction to apply both the family and child protection legislation, resulting ina disadvantage to the children of litigants residing in regions (such as the one where this trial took place) where the Superior Court and the Ontario Court of Justice divide jurisdiction, and the Superior Court does not have a statutory mandate to deal with child protection applications.

Among the court’s reasons for invoking the Court’s parens patriae jurisdiction was the fact that the Children’s Aid Society had had a file open for more than two years concerning the family, including notations of concern about the risk of emotional harm to these children due to the high-conflict parental separation, yet the agency had never fully investigated whether this was a case of emotional harm as defined in the child protection legislation and therefore required agency action. Further, the court concluded that on a balance of probabilities, the test for finding a child in need of protection on the grounds of emotional harm or risk of emotional harm had been satisfied, but no application had been made pursuant to the child protection legislation. Justice Harper invoked his parens patriae jurisdiction to craft an order that would best protect the children in this destructive family dynamic.  The order included directions for the CAS to:

  • undertake home visits to interview the children and supervise the mother’s custody;
  • arrange counselling for the children and both the mother and father;
  • supervise access of the children with their father at the CAS; and
  • prepare and submit monthly progress reports to the court.

While Harper J. held that he had the authority to order CPA involvement in a family proceeding, the decision remains controversial.  On the one hand, the decision is child focussed and attempts to put in place the most effective plan for the child, and recognizes that CPA can have an important role in helping children in high-conflict separation cases.  However, the decision does “push the envelope” on the role of courts in mandating child protection agency involvement in private family disputes, and is only applicable in situations where a superior court judge (a federal appointee) is dealing with the family case. At present, there is no appellate authority in Canada to confirm that superior courts have the jurisdiction to order a CPA to provide services in a family proceeding.

In child protection proceedings, the CPA may offer to withdraw its application in favour of a custody order to one of the parents, with appropriate terms of access to the other parent, if satisfied that the custodial parent will adequately protect the child.  This can, however, be a cumbersome process, as the proposed custodial parents will have to commence a proceeding.Footnote 46

Dispositions

There are a number of dispositions available to courts hearing IPV and high-conflict cases; because in both child protection and family cases, the test is what is in the “best interests of the child”, the same disposition may be ordered in both proceedings.

a. Family dispositions in IPV cases:

Although family legislation and case law generally operate on the assumption that continued contact between a non-custodial parent and child will usually be in the child’s best interests, a number of appellate Canadian decisions have recognized that in situations where a custodial parent has proven that there is a history of serious intimate partner violence or harassment, especially if it continues post-separation, access is not in the child’s best interests and should not be permitted. As stated by Pugsley J.A. of the Nova Scotia Court of Appeal in Abdo v. Abdo, where an abusive husband and father was denied access to his three children:Footnote 47

While contact with each parent will usually promote the balanced development of the child, it is a consideration that must be subordinate to the best interests of the child ...while ...the burden rested on Mrs. Abdo that it was in the best interests of the children to eliminate supervised access ... the use of the word may in the phrase “supervised access ... may be harmful...” [in the trial judgment] suggests that Mrs. Abdo may not have established that supervised access would be harmful....it [is] not...necessary to establish that supervised access would be harmful.

Almost all of the cases where access is terminated can be categorized as situations of “coercive controlling violence,” where there has been repeated physical violence and emotional abuse by a man, directed at his female partner and sometimes at his children, and most of the cases have also involved post-separation spousal abuse or extremely serious violence. Footnote 48  Although in many of these cases the custodial mother relied on expert testimony to support the application to deny access, there are cases involving serious intimate partner violence where access has been denied without such testimony.Footnote 49

In some cases of intimate partner violence, especially violence that continues after separation, it will be appropriate to order that visits with a child are to be supervised.Footnote 50 The Nova Scotia Court of Appeal in Slawter v. Bellefontaine indicated the onus is on the parent requesting supervised access to "demonstrate that restrictions are in the best interests of the children."Footnote 51 The Nova Scotia Court of Appeal endorsed the approach of the Supreme Court of that province in Lewis v Lewis where Forgeron J. wrote:Footnote 52

There can, of course, be no dispute that access is to be determined only according to what is in the best interests of a child….

  • Supervised access is appropriate in specific situations, some of which include the following:
    • [a] where the child requires protection from physical, sexual or emotional abuse;
    • [b] where the child is being introduced or reintroduced into the life of a parent after a significant absence;
    • [c] where there are substance abuse issues; or
    • [d] where there are clinical issues involving the access parent.

Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the child and each application is to be determined on its own merits.

If there are threats or heated arguments when there is an exchange of the child, but the access parent does not pose a risk to the child, it may be appropriate to have supervision of the exchange.

In some locations there are government subsidized programs for supervision of access or exchange, but in many areas these services are not available or are too expensive for many parents to use.  While CPAs provide supervised visitation, it is generally available only if children have been apprehended or placed in their care under child protection legislation, and not if the child is being dealt with under family legislation. 

b. Family dispositions in alienation cases: 

In high-conflict cases where alienation has been established, the most intrusive order that a family court can make is to vary custody, in some cases suspending contact between the child and the emotionally abusive parent even where that parent had been the primary caregiver prior to the variation.  The court will only make an order transferring custody of children from an alienating parent to a rejected parent where it determines that the detrimental effect of the continued care by the alienating parent outweighs the upset or trauma of separating the children from the alienating parent, and the court is satisfied that the rejected parent has the capacity to care for the child.Footnote 53   Transferring custody to an alienated parent is an intrusive judicial response to an alienation case, and it is generally necessary that the parent seeking a custody variation establish that emotional harm has occurred or is imminent if the status quo is maintained.Footnote 54  Expert evidence is usually necessary to persuade a court to make this type of order.

If a court finds that a variation in custody is needed, it may also decide that contact with the alienating parent is to be supervised or suspended for some time so that the child’s relationship with the rejected parent cannot be further undermined. The courts may encourage the new custodial parent to seek counselling or therapeutic support to facilitate the child’s adjustment, but will generally not order this, as the court will want to give the parent the flexibility and responsibility for making decisions about the child.

c. Child protection dispositions in IPV cases:

If a child is found in need of protection, the judge has a broad jurisdiction under child protection legislation to make an order removing a child from the care of one or both parents if this is necessary to promote the child’s “best interests.”  These orders may result in a child remaining with a parent or being placed with another relative subject to CPA supervision, or being placed in the temporary or permanent custody of the agency (referred to as guardianship or wardship). If the child is removed from the care of parents and relatives, the child may be in a foster home, a group home, or the child may eventually be placed for adoption.

In making a disposition in a child protection case where there are concerns about intimate partner violence, a major issue will be the capacity of the parent who has been the target of violence to care for and protect the child.  In some cases, that parent (usually the primary caregiver) may have compromised parenting capacity due to problems such as drug or alcohol abuse, which may themselves be related to the victimization in the relationship. In these cases, it may be necessary to at least temporarily remove the child from the care of the primary caregiver, depending on whether the victim parent can be effectively supported to address those parenting issues.  (The damaging impact that IPV can have on primary caregivers, and therefore on the child’s long-term prospects even in the absence of the abusive parent, highlights the importance of early and effective intervention in these cases.) 

If the targeted parent has good parenting capacity, the court will be concerned about whether she is capable and willing to protect the child from further exposure to intimate partner violence, which will require her willingness to end the violent relationship and comply with court orders restricting contact with the abusive parent.  

There are some cases, even those involving coercive controlling violence, in which the abusive parent makes significant and successful efforts to change his behaviour and the family can be reunited; the differential response model for IPV cases (discussed more fully in the concluding sections of this paper) encourages CPA staff to work toward this possibility where both parents wish to stay together.Footnote 55

The most serious child protection disposition is permanent placement in the care of the state and complete termination of parental rights (usually for the purpose of placing the child for adoption).  This option is reserved for the most serious cases.  Severance of parental rights are sometimes ordered in IPV cases, particularly where the child has been directly harmed by the violence and the victim parent has a history of engaging in relationships with violent partners, despite interventions by CPAs and other service providers.  (As well, often there are other issues such as neglect and substance abuse affecting the disposition of the case.) 

d. Child protection dispositions in high-conflict cases:

In high-conflict separation cases that do not involve intimate partner violence, one, or perhaps both parents, are usually capable of caring for the child, and the most common order is to place the child in the care of one parent, often under CPA supervisionSupervision orders keep the CPA involved in the case by providing that the agency may supervise any contact with the non-custodial parent, conduct home visits, prepare regular reports on the family’s progress for the court, or perform any other function that will assist the parents in developing better communication and healthier relationships (such as arranging counselling for the children or parents). These supervision orders are time limited and subject to judicial re-assessment at the end of the supervision period.

Permanent removal of the child from both parents would be extremely rare in high-conflict cases unless both parents showed a complete inability to abide by court orders and prevent emotional harm to the child. 

e. Cessation of legal proceedings in alienation cases: 

In some high-conflict alienation cases, including some that may involve a child protection agency, alienating parents and their children are highly resistant to any efforts to change their attitudes and behavior, and efforts to force a change in behaviour may be more emotionally harmful than allowing the child to live with the status quo.  Even if the child’s refusal to visit is the result of alienating conduct by a custodial parent, if a change in custody is not a suitable option, it may be in the best interests of the child for the parent to cease legal efforts to enforce terms of access. It can be very difficult for professionals and the non-custodial parent to come to terms with this type of situation, but in some of these cases, it may be preferable to give up the effort to attempt to force a child to have contact with a parent.  

In a family case, the decision to cease efforts may reflect the emotional or financial exhaustion of the rejected parent.  It may also reflect that parent’s assessment that it is better for the child that the parent does not seek to enforce an access order. In a child protection case, it may be the CPA which concludes that it is best for the child if the agency abandons efforts to use the legal system to require the child to have contact with a rejected parent.

In some cases the court may decide that it is not appropriate to order or enforce access,Footnote 56 or may make comments suggesting that continuing efforts to enforce access may not be in the child’s best interests,Footnote 57 despite (or because of) the alienating conduct of the custodial parent. Even if a court determines that a child’s rejection of a parent is due to alienation (and not justified estrangement), it may nevertheless conclude that it would be contrary to a child’s best interests to force a child to have a relationship with the parent.
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