Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Chapter 3 - Impact of pre-existing orders and proceedings
This chapter examines the challenges facing justice system professionals, and ultimately litigants, when there is a lack of knowledge about related proceedings or orders from another sector of the justice system. This chapter approaches this large topic from the perspective of how a pre-existing order from one sector of the justice system, either criminal or civil, has an impact on matters relating to the same family members in another sector of the justice system. When decision makers are unaware of these related proceedings or pre-existing orders, the subsequent orders may be at odds or conflict with the pre-existing orders. For instance, criminal orders made within the context of the judicial interim release (or bail) of a parent accused of family violence may have a significant effect on both the accused parent and the rest of his or her family in a parallel family law matter. Moreover, a lack of information sharing between various sectors within the justice system can cause frustration and confusion for families experiencing violence and can place individuals at risk.
The chart below provides an illustration of some possible scenarios whereby an order from one sector precedes consideration of matters related to the same family in one or more other sectors of the justice system:
Figure 2 - Text equivalent
A criminal order, such as release and bail, a peace bond, or sentencing, can precede a family order, such as a parenting order or restraining order. A criminal order can also precede a child protection order or civil family violence protection order.
A child protection order or civil family violence protection order can precede a criminal order or family order.
Finally, a family order can precede a child protection order, civil family violence protection order or a criminal order.
Ideally, these pre-existing orders should be considered by decision makers in subsequent proceedings. However, this is not always the case because the court may not be aware of these pre-existing orders. While the parties should know if a relevant order exists, there may be issues regarding capacity to understand the order or the ability of some individuals to convey the information to court, particularly if they presume the other court is already aware of the prior order. In some cases courts may not be informed of outstanding orders or information because the parties elect not to advise the court.
While this chapter does not explore all of the potential scenarios where a pre-existing order impacts or is not shared with the decision makers in a subsequent matter involving the same family, it does explore some of the more contentious points of intersection between the different sectors of the justice system and presents some promising responses to address these challenges.
3.1 Pre-existing criminal orders
Following the commission of an offence in the context of family violence, a series of potential scenarios arise related to the arrest, release to the community, remand into custody of the alleged offender, and sentencing of the offender. These various criminal orders may impact family litigation related to child custody/parenting. Alternatively, where the family court is not apprised of the pre-existing criminal order, the resulting family order may not appropriately assess the risk of contact as shown by the subsequent criminal proceedings. Similar concerns arise where the criminal court may not be aware of the family order and so cannot draft the criminal order to specifically address how the orders can work together or make it clear that the criminal order is overriding the family or child protection order (discussed below in section 3.2).
3.1.1 Intimate partner/spousal abuse charging policies
In response to concerns that intimate partner violence/spousal assaults were being treated as “private” matters and not processed with the same rigor as stranger assaults by some police and prosecutors, specific spousal abuse policies were introduced in all jurisdictions in Canada by the mid 1980’s. The intent of the policiesFootnote 138 is to ensure that the same criminal standard is applied to spousal offences as would be applied to any other criminal occurrence against the person. Footnote 139 They were not intended to fetter police discretion but to ensure that the applicable Criminal Code tests for charging be applied. Pro-prosecution policies for spousal abuse generally require that spousal abuse cases should be prosecuted where, based upon all of the evidence, there is a reasonable prospect of conviction and it is in the public interest to prosecute. Footnote 140 The intent behind the policies was generally to ensure that spousal assaults were not treated any less seriously than stranger assault, to shield victims from pressure from their intimate partners to “drop” the charges and to protect victims from retaliatory violence for having personally laid charges. The overall goal of the policies was to encourage reporting of spousal offences, to send a strong message that spousal assault is a crime, to offer protection and assistance to victims and ultimately to reduce the incidence of spousal violence. While an assessment of the spousal abuse charging policies is beyond the scope of the current report, the application of some of these policies has come under criticism in a number of contexts.Footnote 141
3.1.2 Police release and judicial interim release (bail)
The compelling appearance and judicial interim release (“bail”) provisions of the Criminal Code provide peace officers and judges with a wide range of powers to release or detain an accused person. Generally speaking, however, an accused has the right not to be denied reasonable bail without just cause,Footnote 142 and peace officers or Crown prosecutors must justify why increasingly intrusive conditions, up to the point of detention are required.Footnote 143
Currently, police officers can release an accused person and compel their attendance in court through various different forms of release (appearance notice, promise to appear, recognizance, undertaking, etc.). The form of release used is contingent on various circumstances: if the accused is arrested; if the arrest is with or without a warrant; if the offence falls within a certain class of offences; and if the person authorizing the release is an “officer in charge” or an arresting officer. In addition, the form of release is often dependent upon the criminal history of the accused, including previous convictions for violence and whether they have followed bail conditions in the past. In the family violence context, an appearance notice or a summons is normally inappropriate given the inability to place conditions on an accused person.Footnote 144
At the first court appearance, the Crown prosecutor may consent to the accused’s release, with conditions, or oppose release.Footnote 145 Pursuant to section 515 of the Criminal Code, an accused will be released pending trial unless the prosecutor “shows cause” why the detention of the accused is necessary.Footnote 146 Section 515 also provides that the accused can be released on an undertaking (with or without conditions) or on a recognizance (with or without sureties). The Crown can seek an accused’s detention on one of three grounds:
- To ensure the accused’s attendance in court (“primary ground”);
- For the protection and safety of the public (“secondary ground”); or
- To maintain confidence in the administration of justice (“tertiary ground”).
In situations of family violence, the secondary ground – protection of the safety of the public, and in particular that of the complainant, is of particular importance.Footnote 147
3.1.3 Common bail conditions
Even if the Crown prosecutor is unable to show cause why the accused should be detained, they can request conditions on the release of the accused.Footnote 148 It is imperative that the prosecutor be able to advise the court of outstanding previous bail conditions and outstanding family or child protection orders that may be in conflict with requested conditions on bail, so that conditions can be crafted to ensure clarity for the accused and family members/victims. There is great potential, however, for conflicting orders at this stage of the proceedings because bail is often spoken to before there is time for a complete investigation (into existing orders) by either the police or prosecutor.
In cases involving allegations in the context of intimate partner violence, the most common terms of release include: “no-contact” conditions in respect of the complainant and sometimes in regards to children of the union;Footnote 149 a “no-go” term restricting the accused from attending within a specified distance of the complainant’s home, work place, and children’s schools; restrictions on access to the children of the complainant; an abstain from drugs and alcohol clause; and a weapons prohibition. The Criminal Code also allows for an adjournment for up to three days to allow for further investigation. This would afford an opportunity to obtain orders from the family court where necessary.
3.1.4 Impact of release or bail orders on child custody/parenting
The circumstances and conditions of an accused person’s pre-trial release for a family violence-related offence may have an impact on any pending family law matters. Conditions placed upon an accused can remain in effect for extended periods of time and given the demands of the court docket, it could be eight to twelve months before the criminal trial; during this time, the release conditions will be in effect.Footnote 150 As well, it is not unusual for family law proceedings to take place after the criminal process is engaged.
These decisions are all made at a time of chaos and often confusion for the family members involved. It has been noted that the accused will sometimes agree to very restrictive conditions for release because they simply want to get out of jail.Footnote 151 Moreover, the accused has a limited ability to come back to court and change conditions; to do so they have to show a change in circumstances or obtain consent of the Crown prosecutor. However, it should be noted that the intent of the criminal order is to reduce the risk of reoffending and to protect the victim.
The victim may have a change of heart or get caught in the cycle of reconciliation and seek to have the conditions on the accused lifted to allow for reconciliation and may then recant on the allegations. Concerns about conditions standing in the way of contact therefore pose a challenge to both the family and criminal processes.
The imposition of bail conditions prohibiting contact between an accused and his or her current or former intimate partner may effectively interfere with the ability of the accused to spend time with his or her children since some form of “contact” with the other parent will likely be necessary to make arrangements for contact with the child. A complete ban on contact with the other parent can thus significantly hamper contact with the child. Limits on access between the child and his or her parent, may establish a status quo situation, in the family law context.Footnote 152 However, bail conditions limiting contact between the accused and the other parent may be appropriate based on the risk assessment conducted by police. Several domestic violence death review reports have encouraged the use of more robust bail conditions to address the heightened risk of violence, including lethal violence, following separation.
One of the factors generally considered in deciding what custody and access arrangements are in the child’s best interest is the stability of the child’s home environment or the status quo, particularly where it has proven beneficial to the child’s welfare.Footnote 153 This is particularly important in interim custody proceedings.Footnote 154
Interim custody orders do not determine final custody and access outcomes and can be varied without proof of material change in circumstances.Footnote 155 However, in practice, because interim orders tend to establish a status quo situation and stability is recognized as important for children, it may prove challenging to change an interim arrangement that is working well for the children. In addition, often parties never proceed to get a final order but rely instead on the interim order. Nonetheless, when a custody and access decision based on the status quo would potentially harm the child, the child’s safety will likely take priority in considering their best interests.Footnote 156
Concerns have been expressed in a few family law decisions that criminal interventions may have been used to gain a strategic advantage in a family law matter. For instance, in Shaw v Shaw,Footnote 157 Justice Pugsley vacated an ex parte interim order that granted the father custody of the children while the mother was on bail for an alleged assault that had occurred one month prior to the arrest and was not witnessed by the children. The father had attempted to establish interim custody on the basis of the status quo since the bail conditions upon the mother had effectively barred her from the family home and restricted her access to the children. Justice Pugsley was critical of the impact of routine bail provisions which result in exclusion of a parent from the home, thereby placing one party in a position of superiority over the other party in subsequent family or ongoing family law proceedings.
However, in light of the solid body of research indicating that the vast majority of intimate partner violence cases are not reported to the police, and that when victims do report they are likely to have been victimized multiple times, the underuse of the criminal justice system appears to be a much more significant problem than the occasional misuse. Moreover, the police cannot arrest an individual without a warrant in the absence of reasonable grounds to believe that an offence has or is about to be committed (section 495). As noted above, the police standard in intimate partner/spousal assault cases is the same as in stranger violence cases.
There may also be significant consequences to children when a pre-existing criminal order rendered to protect them is not considered in a subsequent family or child protection matter. For example, where the family or child protection courts allow an accused parent contact with a child complaining of physical or sexual abuse, the child’s safety can be seriously compromised, particularly where the accused is allowed to move home with the child. Moreover, this can have a strong inhibiting effect on the child who may then recant the complaint, resulting in the charges being dropped and the child being denied access to victim services. This undermines the child’s confidence in the justice system and reduces the chances the child will bring forward future complaints.
3.1.5 Delays in reporting
Although the delay in reporting the alleged assault was not in itself determinative in the Shaw case, delays can nonetheless have an effect on the credibility of the complainant in the criminal and family proceedings. For instance, in R v Jenkins,Footnote 158 the delay in reporting allegations of serious assault until family litigation began resulted in acquittals on all counts. In the Jenkins case, the complainant alleged a series of physical assaults by her former common-law spouse over a period of several years resulting in a broken wrist, fractured ribs and lost teeth. She indicated that she did not report the assaults at the time for fear she would lose her children to the Children’s Aid Society. However, by not raising allegations of serious assault until family litigation began, the trial judge was faced with the possibility that the allegations were fabricated to gain an advantage in family proceedings and acquitted the accused.Footnote 159
However, as noted in Chapter 1, it is well documented that victims of coercive family violence delay reporting and can suffer multiple assaults prior to contacting police. Fear, trauma and dependency upon the perpetrator are among the many factors that may play a role in a victim’s delay in reporting intimate partner violence. Parties may also be reluctant to report family violence because of the risks of raising this issue and its impact on the ability to reach an agreement to work together to parent the children in the future. The Jenkins case also highlights how fears of triggering a child protection intervention can be a barrier to reporting intimate partner violence. Some promising practices to address this barrier to reporting are discussed below in subsection 3.3.1.
3.1.6 Lack of communication and safety concerns
Communication between the family and the criminal justice systems is critical to understanding the risks associated with bail and the potential impact of bail conditions upon the accused in family proceedings and vice versa. A key concern raised in numerous domestic violence death reviews and coroners reports/inquests relates to family courts making child custody and access or parenting orders without knowing all the risks that have been set out for the judge in criminal court who made a pre-existing no-contact order.Footnote 160 From the criminal perspective, the Crown prosecutor has the obligation to ensure the court has adequate information to make a decision about release. As the trial judge in R v E M BFootnote 161 notes:
The proper administration of justice requires that the judge determining bail understand the circumstances of the offence and the background of the offender in order to decide whether the offender is likely to resort to further violence or intimidation if released. That information can only be produced at a bail hearing if it has been elicited during the investigation and passed on to the prosecutor's office, and from the Crown to the court. Unfortunately, that is not being done in all cases. As a consequence, some decisions as to release of persons charged with assaulting their partners are not as informed as they should be. Sadly, Canadian legal history has been punctuated with cases where offenders charged with spousal assault have been released on bail and thereafter visited even greater violence on the victim.… in cases of spousal or intimate partner assault, the Crown cannot address bail without having certain vital background information in hand, in addition to the circumstances of the offence and the criminal record of the accused. That includes, at a minimum, the following:
- Whether there is a history of violence or abusive behaviour, and, if so, details of the past abuse;
- Whether the complainant fears further violence if the accused should be released and, if so, the basis for that fear;
- The complainant's opinion as to the likelihood of the accused obeying terms of release, in particular no contact provisions; and
- Whether the accused has any drug or alcohol problems, or a history of mental illness.
Without this information the court cannot make an informed decision as to bail. Indeed, without it the court is left to gamble and risk wrongly denying bail, or conversely, risk exposing the victim to greater harm. A system of justice which requires the respect and confidence of society, including those accused of crime, and which has as its primary objective the protection of the public, cannot make such critical decisions absent this information.
Additional considerations include whether the accused has demonstrated suicidal ideation; whether there has been any recent changes in the accused’s employment status or in the couple’s relationship; and whether there are pre-existing orders from the police, the criminal and/or family court.
3.1.7 Peace bonds
Peace bonds issued under section 810 of the Criminal CodeFootnote 162 are preventative orders requiring the defendant to “keep the peace” and obey certain conditions for a period up to twelve months. There are essentially two situations where a peace bond would be requested: firstly, where there is no criminal charge (insufficient evidence to lay a charge) and the applicant initiates the proceeding and secondly, where the Crown prosecutor requests a peace bond instead of proceeding with criminal charges that have already been laid. However, in intimate partner violence cases, the issuance of peace bonds in lieu of a prosecution is discouraged.Footnote 163 Some courts, like the Calgary Domestic Violence Courtroom (known as Homefront), use peace bonds in situations where there is a low risk of reoffending and the defendant is willing to participate in counselling.Footnote 164 The advantages of a peace bond for the defendant are significant as he or she will not have a criminal record unless the conditions of the peace bond are breached.
The existence of a peace bond may have an impact on parallel or subsequent family law proceedings. It may contribute to the establishment of a status quo for the purposes of custody and access or parenting order determinations. The non-communication terms of the peace bond may interfere with communication between the parents, which in turn may have an impact on determinations with respect to child custody/parenting arrangements. However, the non-communication provisions are generally in response to concerns raised by the complainant for the purpose of managing the risk of future harm. Where communications are necessary, the order may generally state that the parties are to communicate through counsel, or by some other means.
While a civil court must accept a criminal conviction as proof of the conduct underlying the conviction,Footnote 165 the same cannot be said of a peace bond because the presumption of innocence is retained.Footnote 166 However, a peace bond can go to the issue of the complainant’s reasonable fear for his or her safety or that of their child. In Otis v GregoireFootnote 167 in lieu of criminal harassment charges against the husband, a peace bond had been issued and the court noted that “[i]n the present trial, the husband reluctantly agreed that he must have entered a plea of “true” to the charge [of criminal harassment].”Footnote 168 In assessing the relevance of the peace bond for a custody and access determination, the trial judge found it to be:
... [C]onvincing evidence that the husband was responsible for criminal behaviour sufficient to support the conditions imposed. I accept that responsibility lay with the husband and that the wife had basis to fear for her safety. Such orders are not made lightly or without sufficient evidentiary foundation.Footnote 169
Although in Otis, the peace bond did not ultimately impact the custody decision because the trial judge found that the misconduct had been addressed by the criminal process, the case does indicate that an existing peace bond can potentially be a factor in the determination of a family matter.Footnote 170
On the other hand, if the family courts are not even aware of the existence of a peace bond in making child custody/parenting orders, this could result in the family court rendering an order which places the intimate partner and/or the children at risk. It should be noted, however, that in many instances the family courts do not place much probative value on the issuance of a peace bond to support allegations of family violence.Footnote 171
In assessing custody and access, many courts require the automatic disclosure of family violence-related criminal conviction records.Footnote 172 The Supreme Court of Canada set out the general principles in this area in British Columbia (Attorney General) v Malik:Footnote 173
A judgment of a prior civil or criminal case is admissible, if considered relevant, as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. The weight to be given to the earlier decision will rest not only on the identity of the participants, the similarity of the issues, the nature of the earlier proceedings and the opportunity given to the prejudiced party to contest it but on all the varying circumstances of the particular case.
However, as the Court notes, the ruling of admissibility is distinct from the decision of whether the prior court decision will be conclusive because the prejudiced party will be given an opportunity to lead evidence to contradict the earlier finding (unless precluded by doctrines of res judicata, issue estoppel or abuse of process).Footnote 174 Nonetheless, proof that a party pled guilty or was convicted of a criminal office is prima facie proof of the wrongdoing, subject to potential rebuttal in some circumstances.Footnote 175
3.2 Pre-existing civil orders
At the stage where the police or a court are considering whether to release an individual with or without conditions, or to detain them, the existence of civil protection orders, family law or child protection orders (and the conditions) in relation to the accused is relevant. Without knowledge about pre-existing orders in the civil context, police or the criminal courts are not able to assess how to reconcile or address the intersection of the various orders, or they may lack critical information to fully assess the risks of harm to family members. There are a number of reasons why it may be relevant for a criminal court to be aware of family law or child protection orders or proceedings:
- At a minimum, the court needs to be aware of whether they are making an order that conflicts with the order of another court. Not only may a criminal court order render certain provisions of family court orders inoperative, from a practical perspective, conflicting orders can also cause confusion for family members. For example, if there is a family court order which provides for access, and a criminal court order which provides for no contact with a parent, an accused may unintentionally violate the criminal order by exercising access to the child through indirect contact with the other parent. Moreover, from a safety perspective, conflicting orders may create confusion about the actual limitations on contact. The accused may use this confusion to their benefit, making contact with a complainant, who is uncertain about whether the accused is actually in breach of one of the competing orders.
- The existence of a family or child protection order prohibiting contact between the accused and a child could be one factor considered by the court as part of the overall context in determining whether an accused poses a safety risk.
- A history of breaches of civil restraining orders, or orders in respect of a child for no contact or supervised contact, goes to the likelihood of an accused obeying the terms of release.
- If there are significant upcoming court dates in the family or child protection proceeding, this is relevant, as they may heighten risk due to potential contact between the victim and the accused as well as the possibly heightened emotional context.
When families are faced with conflicting orders from different sectors of the justice system, they understandably question which order takes precedence. This is particularly the case where one order was made without knowledge of the existence or contents of the pre-existing order. Some means of addressing this challenge are found in subsection 3.3.6 below.
3.3 Promising practices
3.3.1 Removing intersectional barriers to reporting
In response to concerns that intimate partner violence victims may be reluctant to contact police for fear of child protection intervention and seizure of their children, some jurisdictions have introduced differentiated policies and plans. For instance, as part of the Ontario Domestic Violence Action Plan (Ministry of Citizenship and Immigration, 2005), the Ministry of Children and Youth Services developed a more supportive approach to children and families who have experienced domestic violence. It also allows for a more flexible response so that children who have been victims of or witnesses to violence will receive support that is more appropriate for their individual needs. Many child welfare agencies in Ontario have since established domestic violence teams to help work cooperatively with a parent who is suffering abuse. The Children’s Aid Society/Violence against Women (CAS/VAW) Collaboration Agreement policy informs how both the violence against women and child welfare sectors must work together in situations where there is violence against women. One of the principal objectives is to provide women with adequate support and safety when they suffer intimate partner violence in order ensure that their children are also safe. The policy also aims to reduce barriers to reporting for victims of intimate partner violence who might otherwise be reluctant to contact police for fear of triggering child protection service involvement.
3.3.2 Protocols and policies for Crowns to obtain orders prior to bail hearings
There is no standard process for Crown prosecutors across the country to obtain relevant family court orders. In some cases, the complainant or the police might provide the Crown with these orders; in other cases, the Crown will request a copy of the relevant family or civil orders from the issuing court. Moreover, because family court orders are frequently varied, it is important that the Crown prosecutor have the most recent version of a family court order prior to each appearance in the criminal matter.Footnote 176
When victims are relied upon to provide the most recent order, it can place an onus on the victim which may be impossible to meet if the victim has fled her/his home in crisis. If orders are obtained through other means, this reduces the burdens upon the victims. In Ontario, the Domestic Violence Supplementary Report includes a place for officers to indicate whether the accused person is the subject of other current court orders.
Prior to making a bail order, the criminal court judge can ask the parties to obtain information regarding parallel family law proceedings. The information can be more readily provided by the Crown with the assistance of information-sharing protocols. As an example, in British Columbia, the Criminal Justice Branch policies contain guidelines for the exercise of prosecutorial discretion and are found in the Branch’s Crown Counsel Policy Manual.Footnote 177 The Spousal Violence policy, dated March 18, 2013, recognizes the Branch’s commitment to working effectively and cooperatively with its justice system partners.Footnote 178 With respect to bail, the policy states that:
The Report to Crown Counsel should contain information on any other court orders affecting the accused, including orders made under the former Family Relations Act, the Family Law Act, the Child, Family and Community Service Act and the Divorce Act. These orders may have conditions relating to property entitlement, child custody, access, guardianship, parental responsibilities, parenting time, contact or child welfare. Crown Counsel should provide relevant information concerning those orders to the court in order to minimize possible conflicts with any conditions of release ordered on the bail hearing.Footnote 179
Obtaining this information can be a challenge in jurisdictions where family proceedings are confidential unless the victim or accused is advised of the proceedings.
In Edmonton, a memo/letter is sent by the Crown prosecutor to the clerk of the court requesting an exemplified copy (court sealed) of whichever document is required. The clerks pull the documents and prepare a court sealed copy for the prosecution. The documents are then picked up by the court runner and returned to the Crown office for use in the prosecution. As long as the Crown is aware of the related proceeding, they may order copies at no charge. The documents are used in court pursuant to the Canada Evidence Act.Footnote 180
3.3.3 Bail clauses that consider the impact on family proceedings
The release provisions relating to communication with and access to children are arguably the most difficult to draft and have the greatest impact on parallel family law proceedings. The family court needs to be able to react to changes in the situation of a family in a meaningful way, particularly since no-contact bail orders can remain in place for a year or more in some cases.Footnote 181 The challenge in crafting these orders lies in protecting the safety of complainants, while at the same time recognizing that in many cases it will be necessary for the parents (accused and complainant) to contact each other to deal with ongoing custody and access issues on the family law side.
The termination of contact between parents and children can have serious and potentially detrimental effects on the long-term parent-child relationship.Footnote 182 No-contact orders can also impede counselling or other efforts to address the underlying issues facing the family, and can prevent any meaningful assessment of whether regular contact with the parent is in the child’s best interest.Footnote 183
The prosecution policies in Alberta encourage the use of graduated bail conditions that are both sensitive to changing risk and to an accused person’s family matters. Based on the needs of the victim and the level of risk, Crown prosecutors can craft graduated conditions beginning with no contact, moving to contact by telephone only to discuss the children, then permitting child transfer in public, and so on.
In situations where there is a clear assessment that the risk to safety is low, some have suggested that an option may be to craft conditions of release that allow for family courts to determine subsequently whether and how access should occur. However, there may still be concerns about whether the bail court ought properly to be delegating its responsibilities with respect to public safety and the safety of the victim to the family court.
Due to mandate and resource issues, it may not be appropriate to specify in the bail conditions that access be supervised by or as directed by child protection agencies.Footnote 184 Similar concerns are raised with regards to specifying that access through a third party approved of in writing by the probation officer. With respect to this issue, Professor Linda C Neilson notes that:
General provisions in criminal, civil, or family orders that prohibit contact between the parents ‘’except for contact with respect to the children’’ or ‘’except for contact necessary to make arrangements for access to the children’’ not only lack clarity, they also provide opportunities for continuing monitoring, harassment and intimidation on the one hand or for inadvertent breach, on the other, making such orders difficult, if not impossible, to enforce.
Instead, problems can be avoided by specifying exactly how contact to make arrangements for children may or may not take place (for example through a specified third party, by leaving a message related only to arranging contact with children on a telephone answering machine or by email …). See, for example, Naylor v Malcolm [2011 ONCJ 629 (CanLII), Ontario Court of Justice]. Any related safety concerns associated with communications identified by the targeted parent should be discussed and addressed.
Family lawyers will also want to consider the need to take into account the potential impact of such orders on subsequent proceedings and thus the potential need to include provisions such as “subject to the provisions of any subsequent criminal court order made in response to facts arising after the date of this order” or “subject to the provisions of any subsequent criminal order, after taking into account the particulars of this agreement or order”, “subject to arrangements for contact made after the date of this order by child protection authorities” or “subject to contact arrangements in a family court order made after the date of this civil protection order.”Footnote 185
3.3.4 Standard form orders in family law
Where there are allegations of family violence, clarity in orders is essential. Understanding what the parties may and may not do, particularly where it involves potential contact between an alleged abuser and victim(s) is critical both for the family members as well as those called upon to assist them. A family law or child protection order which is clear as to the terms of access/parenting time will be much easier to consider, than one which is ambiguous. Clear orders assist police officers releasing an accused, prosecutors considering conditions, or judges releasing an individual on bail. Similarly, clearly drafted and standardized restraining order and enforcement clauses in family or child protection orders, may be much easier to understand and to work with.
Further, in the immediate aftermath of a family violence incident where temporary orders may be required on an expedited basis, the existence of standard clauses may assist in speeding up the process on the civil side. The existence of a standard order system may allow the order to be issued quickly after a decision, rather than waiting for negotiations between the parties as to the terms of the order before it can be entered and filed. This may facilitate coordination between systems, as the decisions in one system can be conveyed more quickly to the other; it may also help in directly promoting safety, as once an order is in place, it can be enforced.
The use of standard clauses may also assist in identifying cases where there are parallel proceedings ongoing in different jurisdictions. Standard wording may make it easier to do keyword searches to identify family violence cases, where identifiers such as name and date of birth are not sufficient.
There are several jurisdictions in Canada which have various forms of standard clauses or orders.Footnote 186 For example, Manitoba has a comprehensive bank of standard clauses for family law cases which can be accessed electronically. The use of these clauses is mandatory, with possible exceptions under the rules of court. The wording of the clauses was developed through cooperation among stakeholders, the judiciary, the Bar and government officials.
In situations of family violence, there will be no one-size-fits-all approach that will be applicable with respect to the appropriate family law order. For example, the nature of the appropriate order should vary based on factors such as the type and severity of the violence, the resources available in the community (e.g. whether supervised access facilities are available), and the particular circumstances of the child. A variety of standard clauses that are particular to family violence cases may, however, facilitate this process as different types of arrangements, particularly in the case of children, will be appropriate depending on the case.Footnote 187 The Coordinating Committee of Senior Officials – Family Justice Parenting Arrangements Working Group is currently examining standard clauses that are being used in jurisdictions and intends to develop proposals for model clauses in various areas.
3.3.5 Court order databases
The ability of justice system officials to access pre-existing orders related to the same parties is critical in order to avoid potentially conflicting orders and to mitigate risks. As a result, court order databases serve as promising tools for justice system officials in responding to family violence cases. For instance, prior to releasing a person accused of family violence, police would benefit from knowing whether the accused was subject to a child protection order, a civil family violence protection order or a family law restraining order or a custody and access order.
a) Canadian Police Information Centre (CPIC)
The Canadian Police Information Centre (CPIC) was created in 1966 as a computerized information system to provide all Canadian law enforcement agencies with information to assist in combating crime. The CPIC is operated by the RCMP under the stewardship of National Police Services, on behalf of the Canadian law enforcement community. CPIC is used by 3,185 CPIC Agencies and has over 80,000 users.
There are four data banks of information within the CPIC system: (1) investigative; (2) identification; (3) intelligence; and (4) ancillary. The four data banks hold different information that is entered and maintained by different sources. The investigative data bank contains four categories: Persons, Vehicles, Property and Marine. Information is entered by the investigating agency. The identification data bank contains criminal record information, supported by fingerprints. Information is provided by police agencies but maintained by the Canadian Criminal Real Time Identification Services (CCRTIS). The intelligence data bank contains criminal intelligence information entered by the police community. The ancillary data bank contains information provided by police and non-police agencies, such as provincial Registry of Motor Vehicles, INTERPOL or Alzheimer Society.
A subject’s “CORE” information is entered on CPIC, then an agency may add associated records such as: “Court Action”, “Accused” and Special Interest Police (“SIP”). A “PERSONS” record on CPIC (Investigative data bank) starts with the “CORE”. The CORE record contains the subject’s basic information– surname, given name(s), date of birth, physical description, address, cautions (includes violent, family violence, contagious disease, armed & dangerous) and other information.
Included in a “Court Action” record is the case number, expiry date, response area (Canada or province-wide), indication if the case is firearms related, conditions (street enforceable), offence(s) and what is called the “Condition Code”. The “Condition Code” refers to the type of court order, specifically: alternative measures, conditional sentence, suspended sentence, conditional discharge, conditional supervision order (Youth Criminal Justice Act, section 42(2)), open custody (Youth Criminal Justice Act), probation, peace bond, recognizance, undertaking, mental health order (found not criminally responsible on account of mental disorder and is subject to conditions of a Review Board’s disposition order), restraining order and custody order – the subject has legal custody of a child as specified in an order of the court (criminal or civil).
The Accused category is used to enter information about a subject who has a criminal charge laid against them; this is usually Criminal Code offences but may also be a provincial statute or municipal by-law if the court has released them with conditions. The Accused category is also used in cases where a subject has been issued an Appearance Notice or released by an Officer in Charge. The Offence(s) and any Conditions (street enforceable) are recorded in the CPIC entry.
The Special Interest Police (SIP) category is used to record information about a person who is of interest to police for various reasons including a person who is known to: (1) be a danger to police, him/herself or other persons (applicable in family violence cases); (2) be a subject of a peace bond that has expired; or (3) be in danger of family violence. The SIP category covers cases where a subject suffers from an apparent emotional or mental health disorder and there are reasonable grounds to believe that the person is, or is likely to be, a threat to himself/herself or someone else as a result of that disorder.
CPIC is therefore available to register restraining orders, family protection orders, and family court orders of relevance to family violence where there is information that the police can take action on. CPIC will not enter an order received directly from the victim or a party – it has to come from the courts or a police agency. Sometimes there are conflicting orders between criminal and family courts, creating a problem for the justice system participants. The police are most concerned with criminal orders and there is an effective process in place for sending criminal orders from the court to the police for entry. There is less emphasis on civil orders and therefore CPIC is sometimes inaccurate in relation to these orders; police agencies may not be informed of changes to civil orders, particularly if they have had no involvement in the case.
There are, however, promising examples of civil orders being provided to CPIC on a systematic basis. In Manitoba, the court sends all protection orders to police for entry on CPIC. Similarly, in Ontario, court clerks send all family law restraining orders to the local police for entry on CPIC. Indeed, CPIC holds significant potential to assist police in identifying pre-existing civil orders (family, child protection or civil protection orders), which would then need to be brought to the attention of the prosecutor in family violence matters.
b) British Columbia Protection Order Registry
Another example is the Protection Order Registry (POR), a confidential database containing all civil and criminal protection orders issued in British Columbia. The mandate of the POR is to support the enforcement of civil and criminal protection orders and to contribute to the reduction of violence against women, vulnerable adults, youth, children and other victims. The POR was created in 1995 to support the Attorney General’s Violence Against Women in Relationships policy and to address the policing community’s growing concerns about a lack of an accurate, accessible database by providing police with a means to verify protection orders to assist them in making informed law enforcement decisions in a timely manner. In 1998 a Memorandum of Understanding was established between Court Services Branch, Public Safety & Regulatory Branch, Corrections Branch, and Community Justice Branch regarding the delivery of the POR and victim notification.
The POR is a comprehensive image based database that provides users with a hard copy of each order, along with the defendant(s) and all protected parties associated with the order and maintains these records indefinitely. Information sent to the POR is available within 24 hours of receipt, and the orders in POR can be searched by protected party name. The system provides an instantaneous response to queries, allowing police to assess whether an individual is protected before entering a premise or responding to a call. On average, 51 search requests are completed by POR staff each day.
The POR contains all criminal and civil orders that include a protective clause. These orders are sent to the POR in several different ways. When police issue an Undertaking to a Peace Officer, this order is faxed to the POR for entry within 24 hours of receipt by the POR. A criminal court order which contains protective conditions, including a Probation Order, Recognizance of Bail, Undertaking to a Justice or Judge, Conditional Sentence Order, Common Law Peace Bond, Recognizance after Allegation, Intensive Support and Supervision Order, or Deferred Custody and Supervision Order is automatically sent to POR by electronic means when it is entered into the court database. British Columbia Review Board and Court of Appeal decisions are faxed directly to the Registry to ensure they are included in the database. Civil family court orders such as family law and child protection orders are also faxed to POR for timely entry into the database. Integration with the Civil Electronic Information System is currently in progress to provide a faster, more streamlined process for civil orders. POR is also notified by the court when any criminal or civil protective order is varied or cancelled so that the system is up-to-date.
Full access to the database is limited to the agents working within the POR. All other access is based on specific organizational requirements and approvals. Emergency Management British Columbia acts as a hub for access to the database. They have direct, read-only access to valid orders to provide other stakeholders with up-to-date information. Police agencies across the province provide data for input and have read-only access to the database through the CPIC query. In addition, police agencies across Canada would have read-only access to query the POR through CPIC, as would other agencies that work in support of law enforcement.
All levels of courts issue orders and provide data for input to the database. British Columbia Corrections and the Correctional Service of Canada request information through manual searches for the purpose of offender management of incoming offenders and upcoming releases. The British Columbia Corrections Probation Officers have direct, read-only access to POR. Likewise, the Canadian Firearms Registry Centre has direct, read-only access which is used to help determine if there is a history of violence prior to issuing gun licenses. The Victim Safety Unit has access to allow staff to identify, locate, and notify a victim of the impending release of an offender. VictimLink BC is a toll-free, confidential telephone service available across British Columbia and the Yukon that provides information and referral services to all victims of crime in more than 110 languages. As one of its services, it provides victims with confirmation their order is entered on the POR database.
The POR supports the enforcement of civil and criminal protection orders, thus contributing to the reduction of violence against women, vulnerable adults, youth, children and other victims. When used effectively, it is a valuable tool to assist police in investigations and Reports to Crown Counsel.
3.3.6 Statutory provisions addressing conflicting orders
Specific statutory provisions or construction of statutes and constitutional principles can assist in resolving express contradictions between orders issued under different acts with respect to the same parties. The doctrine of federal paramountcy might play a role where there is a clear conflict between orders issued under a federal and a provincial/territorial act. As Peter Hogg noted:
Paramountcy is a quality inherent in federal legislative power, and should in my view be attributed only to statutes enacted by the federal Parliaments (and to regulations or orders made thereunder).Footnote 188
Accordingly, for example, a Criminal Code order engages federal paramountcy, rendering a provincial law order inoperative to the extent of any legal conflict, irrespective of the level of issuing court. However, paramountcy only applies where it is impossible to comply with the two orders, or where the compliance with one order would frustrate the purpose of the other.Footnote 189
Another means of addressing confusion regarding potentially inconsistent or conflicting orders is to clarify in legislation which type of order shall take precedence. For instance, in British Columbia’s new Family Law Act,Footnote 190 section 189 provides rules on conflicting orders where one of the orders is a safety-related protection order (including bail conditions, civil protection order, peace bond) and the other is a family law order, such as an order around guardianship or parenting time. In these cases, the protection order will trump the other order until such time as the issue is resolved. This means that access orders, for example, will be suspended until the protection order is terminated or changed to eliminate the inconsistency.
In Alberta, Ontario and Saskatchewan, child protection legislation explicitly provides that child protection orders will have precedence over any other custody order.Footnote 191 In Newfoundland and Labrador, a party to a child protection case may apply to the court to consolidate with a separate custody case concerning the same child, in order to have both matters decided together.Footnote 192
None of the civil family violence legislation in Canada currently restricts or prohibits the issuing of a protection, prevention, intervention or assistance order on the basis that a related criminal or civil order has already been granted. That being said, jurisdictions deal differently with issues relating to potentially overlapping and related orders. In Prince Edward Island, the emergency protection order (EPO) or victim assistance order (VAS) is automatically varied by any subsequent EPO or VAS, or any order made pursuant to any other act or any act of the Parliament of Canada.Footnote 193
Alberta’s family violence legislation specifies that a protection order may still be issued even if a protection, restraining or no-contact order from any court has previously been granted.Footnote 194 The family violence legislation in Newfoundland and Labrador,Footnote 195 Nova ScotiaFootnote 196 and NunavutFootnote 197 specifies that protection or intervention orders take precedence over any prior or subsisting orders regarding custody or access of children,Footnote 198 including orders made under the federal Divorce Act, but excluding decisions that place children under the care of child protection services. In certain cases, the legislation specifies that an order pursuant to the Criminal Code will override an order made under domestic violence legislation, such as the provision in the Northwest Territories’ Protection Against Family Violence Act dealing with the seizure of firearms or other weapons.Footnote 199 Manitoba requires the person seeking the protection order to disclose any related order or agreement to which the alleged victim and respondent are both parties including orders for support, custody and access as well as other protection or prevention orders,Footnote 200 although the failure to do so will not necessarily be fatal to the application.Footnote 201 Finally, the Yukon’s Family Violence Prevention Act encourages the consolidation of court proceedings dealing with the same subject matter between the same parties in order to avoid contradictory orders.Footnote 202
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