Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems

Conclusion

Representatives from all Canadian provinces and territories participated in the FPT Ad Hoc Working Group on Family Violence with the objective of identifying and analyzing issues posed by the intersection of family, child protection and criminal justice system responses to family violence. In keeping with the terms of reference of the Working Group, this report does not offer definitive recommendations to address the challenges identified. Instead, it identifies various tools, protocols and practices that have been implemented in Canada or elsewhere, or which have been recommended to address these issues. It is hoped that these promising practices will be a starting point for moving forward in this area.

This report attempts to examine the issues from the perspective of families having to reconcile multiple orders and to navigate various parallel proceedings. Given the distinct objectives, processes, evidentiary standards and timelines associated with each of the family, child protection and criminal justice system responses, families can be faced with fragmented responses, inconsistencies and confusion. Currently, the various court systems operate separately from one another and although efforts have been made to enhance coordination between these systems, more work needs to be done, especially with regards to technology.

The proceedings and orders made in one court can have significant impacts on parallel or subsequent matters involving the same family in another court. If orders within the criminal context (notably pre-trial release of the accused, bail, peace bonds or conditional sentence orders) are issued without knowledge of the existence or content of family law or child protection orders, inconsistent or contradictory court orders can result and family members may be placed in a situation where they are inadvertently in breach of one of the conflicting court orders. On the other hand, where family courts are issuing child custody or parenting orders without knowledge of pre-existing criminal, civil protection or child protection orders related to family violence, they run the risk of issuing an order that could place the child and or the parent in danger. While acknowledging the complexities associated with the intersectional impact of pre-existing orders in family violence cases, it is hoped that some of the best practice resources identified can assist in addressing these intersectional barriers. These include the establishment of family violence teams, bail protocols, policies and model clauses, and the use of standard family law orders. Court order databases can also serve as promising tools for justice system officials to help ensure that justice system officials are aware of relevant civil and criminal protection orders relating to the same family.

The different sectors of the justice system operate independently of one another with their own particular experts, assessors and services. In many cases, victims of family violence will be subject to multiple risk assessments by different agencies or shelters intervening on their behalf. A lack of communication between the sectors responding to family violence cases increases the danger that potential risks associated with families in distress may not be consistently identified or fully appreciated. This report emphasizes the need to ensure that knowledge of risk indicators is fully shared across the various sectors of the justice system and that all necessary partners are informed and engaged in risk management and safety planning. The report identifies some examples of high-risk case coordination practices being undertaken in Canada to improve threat and risk assessment communication and case coordination and notes the establishment of death review committees to identify risk factors to help predict potential lethality and to create recommendations aimed at preventing deaths in similar circumstances.

The desire to improve information sharing between the criminal, family and child protection sectors is a key theme of this report. Coordination among different court systems involves the capacity of the parties, court staff, lawyers and judges to access records from other sectors of the system. Parties may erroneously believe that one court has prior knowledge of related parallel proceedings involving the same family in another court. However, the various courts involved may have little to no connection between them and may not be at the same jurisdictional level (one may be at the provincial and the other the superior court level). As a result, courts are often unaware of other proceedings or orders that may be relevant – a problem that is linked to a current lack of institutional sharing of information between different court systems. Technological requirements and huge costs are among the challenges associated with establishing computerized systematic matching of cases from different court systems. Nonetheless, there are a number of examples of Canadian initiatives that improve the way various court systems can be made aware of proceedings or orders from other court systems.

With respect to information sharing, the report also emphasizes the complex but very important legal evidentiary issues that may arise in proceedings involving family violence. Parties may be surprised to find that the evidence used to substantiate a finding of family violence in one court is either not available to them or is not sufficient to substantiate the violence in another. The report examines how evidence from one proceeding may be produced as evidence in another proceeding and the safety implications for the victim of family violence associated with the scope of disclosure of information to the accused in the criminal proceeding, or to the parent(s) in child protection proceedings. Determining when to order the production of Crown prosecution records is a highly contextual exercise. Some guidelines and protocols that are being developed and that may be of assistance are identified in this report.

Depending on the particular context, there may be many pieces of information that are potentially relevant to share for coordination purposes between different sectors of the justice system. However, there is a wide array of privacy legislation, regulations, guidelines and codes of ethics across federal, provincial and territorial jurisdictions that relate to the sharing of personal and confidential information. While privacy considerations can and should generally give way to a duty to share information, when doing so would prevent or protect children and intimate partners from harm, there are many privacy-related challenges to information sharing in the context of cross-sector collaboration. The report emphasizes the importance of clear legislation, directives, memoranda of understanding and protocols in order to address these challenges.

The lack of coordination of court proceedings has impacts on both the administration of justice, as well as on the safety and well-being of family members. For example, the potential adverse effects of criminal orders on parallel or subsequent family law proceedings include procedural delays, impacts on negotiations, and inappropriate participation in mediation, counselling or other programming. Promising practices which may assist in addressing these issues include variations on the “one family – one judge” concept, judicial communications and court coordination models.

While much of the report focuses on the court system, the reality is that the majority of family law, child protection and criminal cases settle outside of court or never make it to trial. For this reason, issues relating to information sharing and collaboration in the context of mediation and other dispute resolution mechanisms are considered. While the use of these various dispute resolution mechanisms in the context of family violence cases is not without controversy, the report provides a few examples of these mechanisms in family violence cases in Canada.

Finally, specific examples of promising collaborative practices are found within the body of the report. In a broader sense, cross-sector collaboration should also include multidisciplinary and inter-agency cooperation among the justice system and other government sectors such as social services and mental health sectors. In addition, coordination is required with community stakeholders in order to allow for referrals and follow-up to appropriate community based non-governmental services. In this respect the report identifies at a more general level, the need for cross-sector inter-agency committees to more formally promote and coordinate common polices, protocols and service contracts and identifies some international examples as well as models within Canada that promote cross-sector, inter-agency and multidisciplinary collaboration.

As noted in the introduction of the report, each jurisdiction is unique and it is important to emphasize that there is no one-size-fits-all approach which will work in all contexts and for all purposes. The Ad Hoc FPT Working Group on Family violence hopes that this report will serve as a springboard to support ongoing and future work by jurisdictions on this very important issue.