Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Chapter 1 - Background
Justice system professionals are becoming increasingly aware of the importance of a more cohesive, coordinated and responsive approach to a wide range of important social issues, including family violence. This is evidenced in the growth of specialized, therapeutic and problem-solving courts and in the wide range of inter-ministerial and inter-agency coordinating committees and information-sharing protocols among diverse branches of the public sector. Increasing access to justice for Canadians is a critical driver behind many of these initiatives.
Most families experiencing separation or divorce are able to arrive at post-separation arrangements with little to moderate involvement with court systems. However, families grappling with violence in the home – be it intimate partner or ex-partner violence or child abuse – may come into contact with various sectors within the justice system, principally the criminal, family and child protection sectors. These sectors all have distinct mandates, cultures, legal standards and procedures. Due to the different purposes, processes, and speed at which each of these sectors of the justice system progress, individuals may be faced with a lack of pertinent information sharing among the various sectors.
While there is a growing body of research on the negative impacts of family violence and on the indicators of risk of severe violence and homicide in families struggling with violence, there is also increasing support for co-parenting and promoting contact between children and their parents post-separation or divorce. These distinct trends are evident in different sectors of the justice system. Once the sentence is complete, the criminal justice system is normally not involved with the family. The criminal justice system emphasizes risk assessment, risk management and safety planning for the victims. While also focussing on safety, the child protection system is concerned with the best interests of the child and can maintain a longer-term involvement with the family for the child. Child protection services may, however, be reluctant to intervene in cases where there are allegations of family violence and there is an ongoing family law dispute between the parents, where those issues may be addressed.Footnote 2 The family law system is also focused on the best interests of the child, which includes considerations of safety, but at the same time places an emphasis on rebuilding relationships and maximizing a child's contact with both parents.Footnote 3
Numerous domestic violence death reviews, inquiries and coroners’ reports have cited the lack of coordination among officials operating in the family law, child protection and criminal justice systems as a contributing factor in tragic family homicides.Footnote 4 Without mechanisms in place to ensure coordination and communication among these systems, families can be faced with potentially inconsistent or conflicting orders, which may in turn have implications for the safety of family members, including the most vulnerable – children. This in turn can undermine public confidence in the administration of justice.
A holistic response to family violence entails linkages among multiple sectors such as health care, mental health, social and community services, shelters, housing, employment, welfare, education, child protection, civil law (including family, immigration, civil damages and torts law) as well as the criminal justice system (including victim services, police, prosecution services, the courts and corrections). Although clearly important, it is beyond the scope of the report to delve into non-justice sector responses to family violence. This report focuses on the intersection of certain aspects of the justice sector in response to family violence, namely the family law services, the family court, child protection and criminal justice services (principally victim services, prosecution and court responses). Another intersectional factor that has not been explored in this paper involves residents on reserve experiencing family violence.Footnote 5 It is important to note that this report does not provide a thorough assessment of the specific needs and issues of Aboriginal Canadians experiencing family violence and having contact with the different sectors of the justice system. Civil issues related to immigration proceedings, non-family civil litigation (such as civil damages and torts) and the division of matrimonial property are also beyond the scope of this report.
1.1 Why focus on family violence?
Family violence is a devastating reality for many Canadians regardless of their social, economic or cultural backgrounds. It may be the cause, a contributing factor, or the outcome of the family breakdown. In addition, as noted below, studies have shown that separation and divorce can exacerbate an already violent relationship and that the period following family rupture represents a period of heightened risk for family members. While family violence is a concern for all communities, Aboriginal Canadians are almost twice as likely as non-Aboriginal Canadians to report being the victim of spousal violence (10% versus 6%).Footnote 6 Aboriginal female victimization is almost triple the non-Aboriginal rate and the level of violence can be severe, with Aboriginal women more likely to be injured or to fear for their life.Footnote 7
Victims of family violence, which for the purposes of this report includes violence against intimate partners and child abuse, can be traumatizedFootnote 8 and reluctant to disclose their experiences. Moreover, contact with the family, child protection and criminal justice systems can sometimes be traumatizing in and of itself – in addition to the trauma experienced through exposure to family violence. Members of these families often require considerable social support and may need to be linked to mental health services.
Once disclosed, family violence is a relevant factor in the responses of several sectors of the justice system. It can play a role in determining the best interests of the child for the purposes of custody and access or parenting arrangements in family law matters; it can be critical in assessing whether a child is in need of protection under the child protection or child welfare system; it can be grounds for the issuance of civil or criminal protection orders; and, it can be a factor leading to the arrest as well as the potential detention and conviction of the alleged offender in the criminal justice system.
Unfortunately for some families struggling with violence in the home, their experiences of the “justice system” can be highly stressful and perplexing. Litigants may presume, for instance, that the family court judge is aware of a previous criminal conviction or a civil protection order of pertinence to the best interests of the child. If this is incorrect, and the court does not have this information, the resulting family order might put the parent or child at risk. Family members may also be faced with a criminal or a child protection order that appears to contradict a family order. This can be confusing and can place family members in a situation where they are inadvertently in breach of one of the orders. Ensuring adequate access to justice for families simultaneously navigating these various branches of the justice system requires a concerted effort on the part of justice system professionals and those working within these systems to provide a more cohesive and coordinated response to these important social issues. As noted by the Chair of the BC Justice Reform Initiative:
During consultations, I often heard of the need to break down silos that exist in the justice system. Institutional participants need to work together. This includes discussion of how their various responsibilities and accountabilities relate and how their budgets may be applied synergistically. Building integration and strategic coordination into the criminal justice system requires consideration of how resources may best be shared among justice system participants. There must also be a frank dialogue among participants as to how their policies affect each other and how their actions should be held to account by the system as a whole.Footnote 9
1.2 What do we mean by family violence?
In its broadest sense, family violence refers to various forms of abuse, mistreatment or neglect that adults or children may experience in their intimate, family or dependent relationships. The definition of family violence continues to evolve as the nature and extent of violence within intimate relationships and families becomes better understood. Some forms of family violence are clearly criminal in nature and would also be taken into consideration in the context of family or child protection proceedings. In contrast, the family may experience other forms of violence that are potentially relevant in obtaining a restraining or emergency protection order or in the context of a family law or child protection hearing, but do not constitute a criminal offence.
For the purposes of this report, the focus will be primarily on intimate partner violence (which includes violence between legally married, separated, divorced, current and previous common-law partners, dating partners and other intimate partners) and child abuse (physical, sexual and psychological violence against children and neglect). In some places in this report, reference is made to “spousal violence”, “spousal abuse” or “domestic violence”, where these terms are used in statistical or reference sources or in the titles of particular policies, programs or laws.
While there is no specific offence of family violence in the Criminal Code, a wide range of offences related to the use of physical and sexual violence may be applicable including assault, aggravated assault, assault with a weapon, sexual assault, aggravated sexual assault, sexual assault with a weapon, forcible confinement, uttering threats, criminal harassment, failure to provide the necessaries of life, homicide and attempted homicide. The particular harm associated with family violence is reflected in the sentencing provisions: section 718.2 provides that it is an aggravating factor for sentencing purposes when an offence is committed against a child, the offender’s spouse or common-law partner or that the offender abused a position of trust or authority in relation to the victim.
Psychological or emotional abuseinvolves using words or actions to control, isolate, intimidate, deride or dehumanize someone. Some forms of psychological or emotional abuse within the family could constitute criminal behaviour, such as cruelty to animals, damaging or destroying property, uttering threats and criminal harassment. Often referred to as stalking, criminal harassment generally consists of repeated conduct that is carried out over a period of time that causes the victim to reasonably fear for their safety or the safety of someone known to them. In contrast, other types of psychological or emotional abuse, while abusive in nature and often a precursor to physical or sexual violence, would not be considered criminal behaviour: ridiculing, insulting, yelling, constantly criticizing, routinely making unreasonable demands, being excessively jealous, not allowing the family member to socialize, or threats of deportation.Footnote 10 These types of behaviours may nonetheless be relevant in the context of family law, child protection or for obtaining civil protection orders in some jurisdictions.Footnote 11
Similarly, many forms of financial abuse within the family, such as theft and fraud, would constitute criminal behaviour. Economic or financial abuseincludes acting without consent in a way that financially benefits one person at the expense of another. Other forms of economic control over an individual, however, would not be criminal, for example, keeping close track of the way a family member spends the small amount of money that they are given. While these behaviours may not constitute a criminal offence, they are relevant in a criminal prosecution and are often used by prosecutors to show the context of the relationship. They are also aggravating factors in sentencing. In addition, this type of behaviour may be relevant in the family law and civil contexts.
Neglect within the family may constitute criminal behaviour, such as failure to provide the necessaries of life, abandoning a child and criminal negligence causing bodily harm or death. Neglect of a child is a ground for state intervention to assist a child in need of protection in all Canadian jurisdictions.
Regarding the impact of family violence on children, studies indicate that child abuse can have long-term impacts on the behavioural, developmental, emotional and physical health of the child.Footnote 12 It has been documented that children who are exposed to violenceFootnote 13 by one parent against another often suffer from emotional, social, cognitive, and behavioural maladjustment problems including emotional/anxiety disorders, and may also exhibit aggressive behaviours and engage in delinquent acts.Footnote 14 In addition, there is evidence of the intergenerational impact of this violence. Men who witnessed violence as boys are more likely to be violent towards their partners as adults and women who witnessed violence growing up are more likely to suffer violent victimization in their adult intimate partner relationships.Footnote 15 Exposing a child to intimate partner violence can be grounds for child protection interventionFootnote 16 and can be a factor in family law proceedings.
1.2.1 Typologies of intimate partner violence
There is a growing body of social science research that argues that not all occurrences of intimate partner violence are the same and can be differentiated with respect to partner dynamics, context and consequences. This differentiation of intimate partner violence has implications from the perspective of determining what legal and social responses are appropriate in particular cases and for assessing risk. Although various terms have been used to describe different types of violence; four patterns or types of intimate partner violence have been repeatedly identified.Footnote 17
- Coercive controlling violence or intimate terrorism – involves “a pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence against partners.”Footnote 18 Control is central to this type of violence and non-physical tactics such as emotional abuse and monitoring may also be used to achieve this.Footnote 19 This type of violence is primarily male-perpetrated and in cases involving intimate terrorism, the violence is generally more frequent and severe. This is the type of violence that comes to mind for most when speaking of “batterers” and it is believed that it is more likely to be behind much of the police-reported and homicide data. This form of coercive controlling violence is also often associated with child abuse.Footnote 20 Emotional and psychological abuse has been determined to be one of the most important predicators of physical and sexual violence in relationships. In 2009, 19% of women who experienced emotional or financial abuse by a current spouse reported being a victim of physical or sexual assault by this same spouse. This compares to 2% of women who did not experience emotional or financial abuse. The heightened risk was also evident when the violence involved previous spouses (32% versus 4%).Footnote 21
- Violent resistance – is in response to coercive controlling or intimate terrorism violence. This violence generally takes place as a response to an assault, and the objective is the protection of oneself or others (therefore primarily defensive force). The Supreme Court of Canada dealt with this type of violence in the 1990 R v Lavallée decision in which the “battered woman syndrome” was considered in order to contextualize the lethal use of force by a victim of intimate terrorism.Footnote 22 Since coercive controlling or intimate terrorism violence is primarily committed by men, violent resistance is primarily committed by women and is relatively rare.
- Situational (or common) couple violence – is violence that is not associated with a general desire to control one’s partner, but is rather more related to a particular incident or argument that escalates into physical violence, such as slaps or pushing. It appears to be related to situations where individuals do not have the capacity to manage conflict and/or anger. Generally speaking, the violence is less severe and frequent than in cases of coercive controlling or intimate terrorism violence. It should be noted, however, that situational violence can be quite serious and result in injuries.Footnote 23 It appears that situational couple violence is initiated at similar rates by men and women.Footnote 24 This type of violence is perhaps more widespread than the others, arising from everyday interactions and arguments and is likely to be the type of violence that results in an appearance of gender parity in the General Social Survey data.Footnote 25 However, female victims of spousal violence in 2009 were twice as likely as male victims to be physically injured, three times as likely to experience disruptions to their daily lives, and almost seven times as likely to fear for their lives.Footnote 26
- Separation-instigated violence – this type of violence occurs at or around separation and generally occurs only once or twice; it can range from being quite minor to severe in nature.Footnote 27 It appears to be a reaction to the separation, and occurs in situations where there has been no violence previously. It is important to emphasize, however, that not all violence that occurs for the first time at separation, will necessarily fall into this category.Footnote 28
Although relatively clear in theory, the typologies may not be so clear cut to apply in practice.Footnote 29 This research does, however, highlight that not all violence is the same. Intimate partner violence stemming from severe mental illness has also been identified in the literatureFootnote 30 It is important in each case, whether in the context of the criminal, family, or other parts of the justice system, to gather as much information as possible about the violence such as its severity, frequency, and impact on victims and whether it occurs in the context of attempts to control or emotional or psychological abuse.
The type of violence will often have an impact on the appropriate legal response to the violence. For example, in the family law context, an understanding of the typologies of intimate partner violence is highly relevant to the appropriate parenting, or custody and access arrangements. It may be of assistance to apply the lens of the typologies of intimate partner violence to determine whether power and control issues are at play, raising the risk of harm, and suggesting the need for parenting arrangements which provide sufficient protections for family members. Caution is necessary, however, because in order to properly apply this typology in the family law context, sufficient evidence of family violence and its impact on family members needs to be before the courts or decision makers. While co-parenting may be workable in cases where there are minor and isolated acts of family violence, proper assessment is required in each case to determine whether there are any issues of power and control which would tend to contraindicate co-parenting. Since victims of intimate partner violence rarely call the police the first time they are assaulted, assessors need to be cautious about concluding that the first act reported represents an isolated event. For example, without this contextual information, cases of intimate terrorism may be categorized as another type of violence, such as situational couple violence, resulting in insufficient protections for family members. In addition, in applying the typology, consideration must be given to the stage of proceedings (i.e. interim vs. final) as well as the services available to family members.Footnote 31
1.3 What do we know about family violence in Canada?
This section provides a brief overview of the research data related to family violence and the criminal, child protection and family law systems, as well as family violence protection orders. For a more detailed review of the data, please see Annex 1, in Volume II.
- According to the 2009 General Social Survey on Victimization (GSS)Footnote 32, 6% of individuals with a current or former spouse reported being physically or sexually victimized by their spouse in the preceding five years; 2% reported experiencing victimization in the previous year.Footnote 33
- Overall, women report more serious forms of violence than men. In 2009, three times as many women who reported current spousal violence indicated that they had been sexually assaulted, beaten, choked or threatened with a gun or a knife by their partner in the previous five years (34% of women and 10% of men). A higher percentage of women (54%) than men (27%)E who experienced violence after separationFootnote 34 indicated that they were physically injured as a result of the violence.Footnote 35 Almost half (48%) of women reported fearing for their lives as a result of the post-separation violence.Footnote 36
- The GSS indicates that less than one quarter of spousal violence victims report the violence to police. Almost two thirds of spousal violence victims (63%) said that they had been victimized more than once before they contacted the police. Nearly 3 in 10 (28%) stated that they had been victimized more than 10 times before they contacted the police.Footnote 37
- In 2011, 69% of the victims of police-reported family violence were women or girls. Women accounted for 80% of all police-reported spousal violence victims.Footnote 38
- According to police-reported data in 2011 there were almost 95,000 victims of family violence in Canada who reported to the police, accounting for one quarter of all victims of police-reported violent crime. Almost half (49%) the family violence victims were victims of spousal and ex-spousal violence while the other half (51%) were children, siblings or extended family members.Footnote 39
- In 2009, 10% of victims of spousal violence obtained a restraining or protective order against their abuser.Footnote 40
- According to the 2009 GSS, about 15% of Aboriginal women who had a current or former spouse, reported being a victim of spousal violence in the five years preceding the survey. More specifically, close to half (48%) reported the most severe forms of violence, such as being sexually assaulted, beaten, choked, or threatened with a gun or a knife.Footnote 41
- According to a recent study of the economic costs of spousal violence in Canada, the total economic impact of spousal violence in 2009 was $7.4 billion, amounting to $220 per capita. The most direct economic impact is borne by primary victims. Of the total estimated costs, $6.0 billion was incurred by victims as a direct result of spousal violence for items such as medical attention, hospitalizations, lost wages, missed school days, and stolen/damaged property. The justice system bore 7.3% ($545.2 million) of the total economic impact; $320.1 million was borne by the criminal justice system and $225.1 million was borne by the civil justice system.Footnote 42
- Between 2001 and 2011, family homicides accounted for 34% of all solved homicides. In 2011, 31 children were killed by a family member and 59 women and 7 men were killed by their current or former spouse.Footnote 43
- 72% of all domestic homicides in Ontario, reviewed from 2003-2011 by the Ontario Domestic Violence Death Review Committee, involved perpetrators and victims who had already separated or who were in the midst of a separation; separation was thus the most common risk factor identified.Footnote 44
- According to the Uniform Crime Reporting Survey (UCR 2 program) data, in 2011, police officers in Quebec recorded 19,373 offences against the person committed in a domestic violence context, meaning the victims were female spouses, former female spouses, girlfriends or former girlfriends of the alleged agressors.Footnote 45
- According to the same data, police officers in Quebec recorded 4,958 sexual offences, being 3,749 sexual assaults and 1,209 other sexual offences. As previous years, sexual offences recorded in 2011 were more frequent against youth and the perpretrator was predominantly a family member (48%), either a parent or step-parent (23%), an immediate family member (19%) or a distant relative (6%).Footnote 46
- In Quebec, domestic homicide represented 35% of all homicides committed in 2011.Footnote 47
- With respect to child abuse reported to child welfare authorities in Canada,Footnote 48 the two most common categories of substantiated maltreatment in 2008 were exposure to intimate partner violence (34%) and neglect (34%) as the primary category of maltreatment. Physical abuse was the primary form of maltreatment in 20% of substantiated investigations in 2008, emotional maltreatment accounted for 9% and sexual abuse was the principal concern in 3%.
- Custodial outcomes for divorcing parents from 2010-2012, from selected courts in Canada reveal:Footnote 49
- Physical custody (where the child resides) – in 62.2 % of cases, children resided primarily with their mothers, in 9.4 % of cases primarily with their fathers, in 21.3% of cases there was a shared custody arrangement, whereby the child would live with each parent at least 40% of the time, and in 5% of cases there was a split custody arrangement whereby at least one child resided with each parent.
- Legal Custody (who makes major decisions with respect to the child) – in 74.8% of cases there was a joint custody arrangement whereby both parents would make the major decisions about the child together. In 19.5% of cases the mother had sole responsibility to make major decisions and in 2.9% of cases the father had the sole responsibility to make major decisions.
- Statistics derived from a review of court file data in selected courts indicates that family violence is mentioned in 8% of divorce casesFootnote 50.
1.4 What do we know about the incidence of parallel justice sector involvement in family violence cases?
There is very little definitive Canadian information about the incidence of parallel family, child protection or criminal cases involving the same family and additional research is needed about the incidence and characteristics of overlap cases. There is, however, some information from several sources which provides a preliminary sense of the scope of the issue:
- Data is available from an evaluation underway of the Integrated Domestic Violence Court in Toronto, Ontario (discussed in detail in Chapter 5). In order to provide a comparison group of cases not heard in the Integrated Domestic Violence Court, the study examined court files from 2003-2010; there were 11,154 family filesFootnote 51 available on-site for review at the 311 Jarvis Street courthouse. Researchers examined every third file and found that, of these, there were 398 files where there was or had been a case in the criminal domestic violence court. This means that approximately in 10.7% of family cases there was also a criminal proceeding in relation to domestic violence.
- Of lawyers surveyed in 2010 at the National Family Law Program, over one third (38%) indicated that in situations involving family violence, their clients often or always were also before the criminal courts while the family law proceeding is ongoing. Anecdotal reports from family law lawyers also indicate that this is an issue that arises in a significant number of cases.Footnote 52
- Data from the Canadian Incidence Study of Reported Child Abuse and Neglect, provides information with respect to child maltreatment cases in 2008: Footnote 53
- There were 50,304 cases in which intimate partner violence was a primary, secondary or tertiary ground for a child maltreatment investigation. In 36% of these cases, charges were laid in the adult domestic violence case; this represents 18,010 cases where there was a child maltreatment investigation and a criminal proceeding.
- Criminal charges were laid in 28% of cases in which there was also a maltreatment investigation and a child custody dispute; this represents 2,049 cases where a child protection worker reported that the criminal, family and child protection systems were all involved with the family.
- In 6% of cases where there was a maltreatment-related investigation in respect of a youth aged 12-15, in the previous six months the youth had also been charged, incarcerated or subject to alternative measures in the Youth Criminal Justice system.
In assessing the number of overlap cases, it is important to keep in mind that these cases involve families who will require both significant involvement of the courts and support from the services associated with the criminal, family and child protection systems. For this reason, even if the numbers are not particularly large, from the perspective both of the families and the justice system, the coordination of these overlap cases is critical.
1.5 What are key differences between the relevant sectors of the justice system?
The objectives and processes of the various sectors of the justice system which address family violence are very different. Annex 2, in Volume II, provides a general overview of the criminal, youth criminal justice, child protection and family law systems as well as the procedures to obtain a civil family violence protection order. For readers who are not familiar with one or more of the justice system sectors (described also as systems) discussed in this report, that Annex provides a justice system “101”.
Despite their differences, all of these systems are dealing with the issue of family violence. As families navigate these systems, sometimes simultaneously, they are faced with the differences in system objectives, procedures and timing. The fact that these systems are often uncoordinated creates challenges for these families, as well as for those working within these systems. This section highlights key areas where issues arise.
The purpose of the criminal justice system is to maintain a just, peaceful and safe society. The criminal law is thus primarily concerned with protecting the safety of individuals and their property, while protecting their fundamental rights. Because of the public interest, crimes are prosecuted on behalf of the state against an accused.
An individual who is accused of a criminal offence faces a potential deprivation of their liberty, a criminal record and the negative stigma associated with a criminal conviction should they be found guilty of the offence. Consequently, accused persons benefit from a range of Canadian Charter of Rights and Freedoms protectionsFootnote 54 which have a significant influence on the conduct of criminal investigations, proceedings and rules of evidence.
Like the criminal justice system, the child protection system is government based. The purpose of the child protection system, however, is different and is to ensure that parents and others who care for children meet a minimum standard of care.Footnote 55 The state advocates on behalf of the child’s interests, and in the child protection system, decisions are made based on the best interests of the child. While the legislation in each province and territory differs somewhat, the types of behaviour that may be of concern pursuant to child protection legislation is much broader in scope than in the criminal system. For example, exposure to intimate partner violence may constitute sufficient grounds for child protection intervention in some circumstances.
While child protection proceedings are civil in nature, the rights of the individuals involved must be balanced against the state’s objective of protecting vulnerable children. In addition, if as a last resort, the state applies to deprive a parent of custody of their child, the proceedings must be conducted in accordance with the principles of fundamental justice because the parents’ Charter rights may be at stake.Footnote 56 Children are rights bearing individuals and their Charter rights may also be engaged in this context.Footnote 57
Nine provinces and territories have also passed civil domestic/family violence legislationFootnote 58 and this legislation generally provides for two types of protective orders: a short-term emergency intervention or protection order, and a long-term victim assistance order, sometimes called a protection, prevention, or restraining order.Footnote 59 The focus of this legislation is thus on safety and many of these orders offer additional remedies to complainants that are not available through the criminal justice system, such as exclusive possession of the matrimonial home for a specified time period, orders directing a peace officer to accompany a specified person to the residence to safely collect personal belongings, and orders directing a peace officer to remove the alleged offender from the residence. Temporary child custody orders may also be available.
An order under civil family violence legislation is between two private parties, a person who is found in need of a measure of protection, and the person against whom the order is made. Thus, it is a private proceeding in which the victim, or someone on their behalf (usually a police officer), applies for the order. While the courts often have standard forms or formats that indicate the type of information or evidence that parties are required to put before the court, it is ultimately the parties who determine what evidence to put before the court.
The purpose of the family law system is to regulate the rights and responsibilities of family members upon the breakdown of the family unit. In particular, the family law system deals with matters of separation, divorce, parenting arrangements (custody and access) for children, child and spousal support, division of family property and possession of the family home.Footnote 60
In comparison to criminal law and child protection proceedings, family law involves the resolution of disputes between private parties and the proceedings are almost always initiated by the parents rather than by the state. Because the state is not a party, if there is information that neither party wishes to place before the family court, it will not be placed before the judge. For example, if a victim of intimate partner violence prefers not to disclose an incident of violence, this information will likely not be before the court, even if there might be multiple forms of evidence (e.g. 911 calls, photographs, medical reports).
Because family law proceedings are private in nature, litigants do not benefit from the same Charter protections as accused persons in criminal proceedings or as, to a lesser extent, parents in child protection proceedings. There is, however, a public component to the family law system in the sense that society has an interest in ensuring that family law outcomes are in the best interests of children, and are fair.Footnote 61
With regard to parenting arrangements (custody and access), the court will make decisions based on the best interests of the child, which will include consideration of many different factors, including the safety of family members, the emotional well-being of the child, as well as the general desire to promote a meaningful relationship between a child and both of his or her parents.Footnote 62
A consultation report completed for the National Judicial Institute in April of 2012 highlights the difficult position in which the systems, with their differing objectives, can place families. This is particularly the case where there is a lack of coordination between the systems:
Criminal courts order no contact, child protection authorities say the children will be apprehended if there is contact and family court focuses on the view that contact is in the best interests of the child and grants unsupervised access.Footnote 63
While this report primarily focuses on the intersection among the family, child protection and adult criminal justice systems, it is important to recognize that a young person involved in family or child protection proceeding may also be involved in the youth criminal justice system.Footnote 64 The youth criminal justice system is discussed in more detail at Annex 2 in Volume II.
1.6 Raising allegations of family violence
There are many cases where family violence exists, but is not brought to the attention of the police or the courts due to a variety of factors, including shame, a belief that the victim won’t be believed or fear that they will be viewed as an “unfriendly parent” in the family proceeding. As noted above, less than one quarter of spousal violence victims report the violence to the police and the majority of those who do, were victimized more than once prior to reporting to the police. Professor Linda C Neilson explains the numerous reasons why family violence may not come to the attention of one or more sectors of the justice system:
The failure to document and to present evidence of domestic and family violence during mediation, hearings and trials in family law cases is reported repeatedly in empirical studies from all western common law jurisdictions. The reasons, include claims of domestic and other forms of family violence being ‘negotiated’ out of the litigation process in return for concessions from the other party (such as agreements to pay child support or to abandon joint custody claims); non-perpetrating parents succumbing to settlement pressure - from professionals who do not understand the significance of domestic violence in connection with harm to children; failure to present evidence when judges have demonstrated a resistance to considering such evidence or have a record of penalizing parents who seek restrictions on access to children; lack of specialized understanding of the dynamics and implications of domestic violence among those who work in the family and child protection systems.… Other exclusionary factors include: lack of financial and psychological resources required to pursue litigation and to hire domestic violence experts, fear of retaliation, embarrassment, protection of family and or cultural ‘honour,’ emotional inability to offer coherent testimony as a consequence of damage caused by domestic violence, and concerns about child safety (such as the potential for perpetrator retaliation against children). The failure to present full information of domestic violence during hearings is being reported regularly across western legal jurisdictions.
In the criminal context, Statistics Canada informs us that the vast majority of criminal acts of domestic violence are not reported to police much less prosecuted and tried in criminal court. People targeted by criminal acts of domestic violence can have numerous valid reasons for not cooperating in criminal proceedings, some of them associated with family safety. Research studies document that those who have negative experiences in the criminal justice system (e.g. they were subjected to violent retaliation, they were not protected because criminal sentences offered limited safety and protection, or they experienced perpetrator rage and increased abuse and violence following a criminal conviction) may not call the police on the next occasions. If family lawyers and courts ignore or discount patterns and incidents of domestic violence that do not result in a criminal charge, the vast majority of the criminal acts of domestic violence will not be considered in family and child protection litigation.
People who have been threatened, or have been taught to fear the involvement of police and or child protection 'authorities' (for example those new to Canada from oppressive countries), and those who fear perpetrator retaliation, may avoid the criminal system altogether but may initiate family law proceedings in an effort to protect the children. Family law cases involving domestic violence are not necessarily less serious or less dangerous than criminal cases. Indeed some are more dangerous.Footnote 65
And yet, as noted by three leading academics and researchers:
Family violence allegations raised in the context of parental separation are often met with skepticism and a concern that the allegation is being utilized to limit the involvement of the other parent, especially if there has not been significant police and criminal justice system involvement. The making of abuse allegations can be a double–edged sword for abuse victims. If the allegations are proven on the preponderance of evidence, the victim and her children may find a degree of safety, with recent legal reforms and improvements in community resources providing a greater degree of safety than in the past. However, if the allegations appear unfounded and are considered by the judge to have been made "maliciously", the abuse victim may lose custody. In some of these cases, mothers are accused of willful alienationFootnote 66 of the children against their father.Footnote 67
Where the criminal or child protection systems are engaged, and there is an ongoing custody and access dispute, there is thus sometimes a suspicion that the other systems are being used strategically to gain an advantage in the family law matter.
False allegations of family violence, such as allegations of child abuse, can inflame already tense and hostile custody and access disputes, and have damaging consequences for both the child and the wrongly accused parent. All provincial and territorial child protection legislation, however, make it mandatory to report child abuse and a proper assessment of the allegations is required to ensure that a child is not placed at risk. Studies have indicated that deliberately false claims are rare and most false claims are the result of honest mistakes, parental anxiety and misinterpretations of children’s statements, rather than intentional lies.Footnote 68 For example, data from the 2008 Canadian Incidence Study of Reported Child Abuse and Neglect indicates that 10% of reports of child maltreatment where there was also a child custody dispute between the parents, were intentionally false.Footnote 69 In contrast, in 60% of cases where there was also an ongoing custody dispute, the report of maltreatment was either substantiated or maltreatment was suspected. In a further 18% of cases, the report of maltreatment was considered unfounded, but there was no malicious intent by the person who made the report.Footnote 70 Therefore, there is a need to distinguish between a false allegation that is deliberately made to gain a tactical advantage in a family law dispute, and an unfounded allegation that is made on the basis of a misunderstanding and driven by concern for the child’s safety.
Similar large scale statistics do not exist with respect to rates of substantiation of claims of intimate partner violence in the family law context. There are, however, some cases in the family law system where judges conclude that one of the parties has exaggerated allegations of intimate partner violence.Footnote 71 As in the case of allegations of child abuse, it is important to distinguish between unfounded allegations, where the court finds that there is insufficient evidence that family violence has occurred, and an intentionally false allegation.
As noted, above, no jurisdiction in Canada includes specific provisions with respect to false allegations in their custody and access (parenting) legislation.Footnote 72 A false allegation in civil court could, however, result in a finding of contempt of court and the falsely accused parent could also use the civil justice system to seek damages.Footnote 73 Moreover, a number of Criminal Code offences may also be relevant, although as noted below, their use may be inappropriate.Footnote 74 To conclude on this point, while in a small number of cases intentionally false allegations are made, it is also important to keep in mind the large number of cases where allegations are substantiated, or where family violence exists but is not brought to the attention of one or more sectors of the justice system. Better coordination between the various sectors of the justice system may make it easier for family members who have suffered family violence to obtain the remedies they need. At the same time, this may assist in identifying cases where there is an attempt to use one or more sectors strategically.
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