Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems
(Criminal, family, child protection)
A Family Law, Domestic Violence Perspective

Part 8: Interim Proceedings

8.1 Child Protection: Preventive Protective Orders

Sometimes all a child needs to be safe is removal of the violator and his or her ability to abuse or control the targeted parent. In many jurisdictions orders prohibiting contact with the child (and in Ontario prohibiting contact with the person who has lawful custody of the child) may be granted preventively, pursuant to child protection statutes. Such orders can reduce or prevent the need for additional state action to protect the child.

Child protection statutes in a number of jurisdictions restrict, however, the circumstances in which such orders can be issued or the terms that can be imposed. In some jurisdiction such orders may only be granted in association with apprehension of the child or in connection with a supervision, custody or guardianship order. For example, section 30 of Alberta's Child, Youth and Family Enhancement Act, Chapter C-12 states that the 'director' may apply for a restraining order when the child has been apprehended or is the subject of a supervision or guardianship order. See also section 44 of Prince Edward Island's Child Protection Act, C. 5.1.

Statutes in some jurisdictions (for example, Alberta, British Columbia, Newfoundland & Labrador, and Nova Scotia) specify terms that may be included in such orders. Statutes in other jurisdictions, such as Ontario, Saskatchewan and New Brunswick, authorize provisions to secure the "best interests" or, in the case of Ontario, "the protection" of the child.

For public access to the statutes listed above, see CanLII: http://www.canlii.org/en/index.html

When preventative authority is limited, it may be possible for the child welfare authority to apply for a civil no-contact order pursuant to domestic violence prevention legislation (in jurisdictions where such legislation exists). Some prevention statutes authorize third party intervention as well as a range of remedies that can enhance safety and support the well-being of children (such as measures to prevent or to resolve domestic violence, to provide economic support, to secure personal property or to obtain exclusive possession of housing). In Re D.B., 2007 ABPC 318 (CanLII), a provincial court in Alberta allowed the child welfare authority to make application for an Emergency Protection Order pursuant to Alberta's Protection Against Family Violence Act, R.S.A., 2000, c. P-27. The goal was to enable the child welfare authority to take action to protect the child by removing the violator from the family unit without the need for a finding of the need for protection against the targeted parent. A complicating factor in the case was that the targeted parent refused to initiate and to consent to the application. (The court concluded that the targeted parent's failure to consent was likely the result of intimidation or fear.)

Other alternatives that child protection authorities can use to bind perpetrators, to ensure exclusion from the home, or to protect children, when child safety is a concern, include:

In the absence of information exchange protocols or legislation requiring disclosure, there is still a potential for problems, however, at the intersection of family law and child protection proceedings should the person subject to the prevention agreement or order pursuant to the child protection statute make an application for access to the child in a family court.Footnote 96 In such circumstances, family lawyers should ensure that the family court is made aware of the existence of the protection order or agreement. If a criminal proceeding is on-going, lawyers representing the targeted adult should ensure that the Crown attorney is alerted to the existence and terms of the order or agreement in order to enable the Crown resist the issuance of an inconsistent order in the criminal proceeding.

Family lawyers in all jurisdictions will want to check for past and current protection agreements and orders pursuant to child protection legislation.

8.2 Restraining Orders and Orders for Civil Protection

8.2.1 Introduction

A family lawyer seeking civil protection for a client who has survived domestic violence has a number of options. Superior courts have inherent jurisdiction to grant injunctions to protect litigants from intimidation, harassment and injury during litigation processes. Non-molestation orders can also be obtained pursuant to powers associated with the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) and statutes in all provinces and territories authorize civil protection orders in family law cases.

Restraining orders in Alberta can be granted to protect a broad range of persons, while restraining orders granted pursuant to family legislation in New Brunswick and in Ontario are limited to applicants and children: see 128 of the Family Services Act S.N.B. 1980, c. F-2.2, section 46 of Ontario's Family Law Act R.S.O. 1990, c. F.3 and section 35 of Children's Law Reform Act, R.S.O. 1990, c. C.12. Protections pursuant to Part 9 "Protection from Family Violence" of British Columbia's Family Law Act, SBC 2011, c 25, , protect "at risk family members".

Civil protection orders are also available pursuant to domestic violence protection statutes in many Canadian jurisdictions.

For web access to the statutes, see CanLII http://www.canlii.org/en/index.html

8.2.2 Effective Civil Protection Orders: Domestic Violence Context

In coercive domestic violence situations (see Part 5 for discussion of features that distinguish coercive from minor-isolated and resistance violence), effective civil protection and restraining orders should (to the extent permitted by statute) include provisions to ensure that perpetrators attend and complete specialized domestic violence intervention and specialized parenting programs and, if warranted, addiction, mental health, and other treatment programs. To the extent permitted by statute, such orders should also include compensation for expenses and damages associated with domestic violence, provisions for support, division and access to property, custody of children, and exclusive possession of the home. Orders that provide broad protection can enable a victim and child to find stability and safety, preventing a return to a place of violence and abuse.

Given the increasing importance of evidence to be found in computers and communication devices (see part 4.5 and part 5.8 on evidence and privacy matters), consider seeking explicit provisions to obtain immediate possession of such items or to prevent destruction of evidence. Given the speed at which data can be removed from computers, ex parte orders may be necessary.

In the family law, coercive domestic violence context, if statutory authority to obtain an order for the violator to attend domestic violence intervention is lacking, consider seeking a provision specifying voluntary completion of domestic violence intervention with specialized parenting content as a condition of supervised or unsupervised access to children. See, for example: P.P. c. R.C., 2006 QCCA 445; Weiten v. Adair, 2001 MBCA 128; Merkand v. Merkand, 2006 CanLII 3888 (ON C.A.), application for leave to appeal to Supreme Court of Canada dismissed: Irshad Merkand v. Tallat Merkand, 2006 CanLII 18512 (S.C.C.); TLMM v. CAM, 2011 SKQB 326.

8.2.3 Enforcement

When seeking civil protection orders, family lawyers may wish to consider inclusion of a "no need for service clause" (for example, when both parties were present in court when the order was made), such that further proof of service is not necessary. Another option is to have the respondent acknowledge notice of the civil protection by signing the order. This enables police to enforce the order without having first to locate and then prove service.

See Partridge v. Partridge (2007), 213 Man. R. (2d) 305, 2007 MBQB 80 in connection with contempt for breach of conditions known to the violator, despite that the acts were committed prior to judicial signature and formal entry of the signed order.

It is important to set out clearly the applicable enforcement processes and specify the circumstances in which police may arrest in order to encourage swift enforcement and allay police confusion. The applicable civil order enforcement processes vary by Canadian jurisdiction. A notice relating to potential criminal liability pursuant to section 127 of the Criminal Code is appropriate in some jurisdictions but not in others. In jurisdictions that do not include enforcement mechanisms in the legislation, failure to adhere to a civil protection order (other than orders for payment of money) can trigger a charge under section 127 of the Criminal Code.

A former lack of appellate court consensus on this issue has now been resolved. The majority ruling in R. v. Gibbons, 2012 SCC 28 (CanLII) makes it clear that the exception to criminal enforcement in section 127 will only be triggered when the Parliament or the Legislature intended to limit the application of s. 127 and created an express, alternative statutory response to failure to obey civil court orders. "The fact that rules of court provide for punishment or a mode of proceeding is also not sufficient to trigger the exception if the order was issued pursuant to the court's inherent common law power.... procedure alone is insufficient to trigger the exception..."

Thus, when a provincial domestic violence or family law statute sets out explicitly the applicable offence, process, enforcement, and specific penalties for failure to obey a court order granted pursuant to the statute, enforcement will be in accordance with the statute (with the possible exception of criminal contempt). When the applicable domestic violence or family law statute does not set out specific offence and penalty provisions, section 127 of the Criminal Code can be applied: R. v. Gibbons, 2012 SCC 28; R. v. Fairchuk, 2003 MBCA 59.

The following domestic violence prevention statutes include explicit offense provisions relating to failure to obey court orders granted pursuant to the Acts:

8.2.4 Identification of Agencies to be Notified of the Civil Protection Order

Enforcement and safety can be enhanced and conflicting orders can be avoided when key members of the community, as well as professionals in other court sectors, are notified of the terms of civil restraining or protection orders. It is important, however, to consult with the targeted adult as to the persons and agencies to receive copies of the civil protection order. Examples include:

Note: Ascertaining the targeted party's views on who should and should not be notified is critical. People who are targeted by domestic violence are best placed to ascertain their own specific risk and safety needs; they will know best whether or not such notifications will enhance safety or increase risk. Family lawyers will want to work closely with clients on this issue and on any adjustments that need to be made to the safety plan. In addition to working collaboratively with the 'victim', one should check the applicable statute since a number of the domestic violence prevention statutes impose obligations to notify and or to send copies of civil protection orders to police, victim services and/or child protection authorities.

8.2.5 Children

Protective measures may be required in civil protection orders in order to ensure that the contact between the child and the perpetrator is safe and beneficial. Protective measures need to be matched to the type (see Part 5) and level (see Parts 6 and 7) of domestic violence. Prohibiting or restricting the perpetrating parent's contact with children in a civil protection order can be warranted in coercive domestic violence cases when the facts indicate:

Such prohibitions should remain in place until the perpetrator has completed and has presented evidence of changed behaviour following completion of domestic violence intervention with specialized parenting content and/or until child safety has been assessed and can be assured and/or until the best interests of the child issues can be more fully explored and determined by a family court or child protection authorities.

If access to children is beneficial and is to be allowed in a civil protection order, the order should set out clearly what forms of communication and contact will and will not be allowed and how provisions governing access to children will and will not affect the other terms of the protection order. For an example, see the provisions relating to the children in Partridge v Partridge, 2009 MBQB 196, 242 Man. R. (2d) 249 and in Naylor v. Malcolm, 2011 ONCJ 629.

8.2.6 Criminal, Child Protection, & Family Law Conditions Allowing Access to Children

It is important to ensure that all existing criminal, child protection, and family law orders and agreements affecting the same family are taken into account. For example, if the civil protection order will include provisions to enable contact for the purposes of access to children, the wording of the provisions should not be contrary to, and should preferably incorporate and clarify, the provisions in any existing criminal no-contact order or undertaking.

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 and may not take place (for example, through a specified third party, by leaving a message relating only to arranging contact with the children on a telephone answering machine or by email, subject to concerns if any about misuse of modern technology identified in 5.8 above). See, for example, Naylor v. Malcolm cited earlier. 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 or civil protection 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". Targeted adults should be urged to ensure that their family lawyer has access to information about all past and present civil protection orders as well as the other party's record of compliance.

The targeted party should be consulted in connection with any processes or procedures to ensure police (and, when applicable, probation, parole, firearm's officials, supervised access centres and domestic violence intervention services) are informed about the terms of current civil protection orders.

8.2.7 Weapons Restrictions

Firearms and other weapons are used in Canadian homes to intimidate adults and children in many domestic violence cases. Many domestic homicides and suicides in Canada are committed with otherwise legally owned rifles and shotguns. Since weapons (particularly rifles, shotguns and other guns) are often used to intimidate and to control in domestic violence cases, swift removal is recommended, particularly in coercive domestic violence cases.

For judicial notice, albeit in a criminal context, of research demonstrating that timely removal of weapons can save lives in domestic violence cases, see R. v. Hurrell 2002 CanLII 45007 (ON C.A.) at paragraph 34.

Note that adults targeted by domestic violence will not always know if the other party has access to weapons. Furthermore, despite serious concerns about weapons, targeted persons may be reluctant to seek weapons-restricting orders for cultural reasons or out of fear of retaliation. Family lawyers and Crown prosecutors concerned about safety will want to make enquiries relating to access to weapons and will wish to consult the targeted client about the need for removal or restriction.

The overriding legal principle in Canada is that possession of firearms is a privilege, not a right. The Supreme Court of Canada per Charron J. sets out, in R. v. Wiles, 2005 SCC 84, statutory authority to restrict access to weapons in civil protection cases. See also: R. v. Montague, 2010 ONCA 141.

Family lawyers representing adults targeted by coercive domestic violence will wish to ensure that Crown and police are informed of concerns about potential access to guns and other weapons and, subject to the perspective of the client as well as the provisions of the Criminal Code, that action is taken in the criminal context, when authorized by the Criminal Code to surrender weapons and to prohibit the possession of weapons as a condition of interim release. For particulars as well as potential options, see the “Firearms” chapter of 2013 Domestic Violence Handbook for Police and Crown Prosecutors in Alberta.

Note the importance of considering future as well as current possession of weapons as well as access to weapons owned by others who reside at the same residential location. Criminal defense lawyers are likely to advise clients charged with domestic violence to dispose of weapons.Footnote 100 Family lawyers representing 'victims' should anticipate that recipients of disposed weapons could be family members or friends of the accused. When safety is a concern, and parallel criminal proceedings are ongoing, family lawyers representing victims can take action to remind the Crown that the fact that an accused does not have access to or possession of a weapon at the time of an interim release hearing is not necessarily a dependable assurance that a weapons prohibition is unnecessary. Consider the need to make inquiries about the whereabouts of and potential access to disposed weapons. Alternatively, when safety and potential access to weapons are of concern, a criminal and or a civil time-limited prohibition on future possession or acquisition can offer needed protection.

In addition to criminal remedies, domestic violence prevention statutes in a number of jurisdictions explicitly authorize judicial orders to seize or to prohibit access to weapons.

Domestic violence statutes in Prince Edward Island (Victims of Family Violence Act, R.S.P.E.I. 1988, c. V-3.2) and Saskatchewan (Victims of Domestic Violence Act, S.S. 1994, c. V-6.02) do not include specific provisions relating to firearms or weapons but do authorize orders for immediate protection, including provisions relating to temporary possession of specified personal property.

Caution: Despite the fact that numerous family law cases involve domestic violence, and that family law cases involving domestic violence are no less dangerous than criminal domestic violence cases, many family law statutes governing private custody and access matters in Canada do not expressly authorize the seizure and prohibitions on access to weapons. Nonetheless, family lawyers will wish to keep in mind that criminal remedies, when they are available, do not preclude the parallel use of civil remedies. (See part 8.2.9 below.) Steps should be taken to ensure that weapons provisions in the family and criminal case are not contradictory.

When courts have authority to prohibit access to weapons in civil cases, consider whether or not the indicators of risk (see Part 6 above) or potential for lethal outcome (see Part 7 above) warrant the imposition of restrictions.

When facts indicate risk or danger and weapons are a concern, one should consider:

Problems with tracking compliance and enforcement of orders related to the seizure and prohibition of weapons are being reported throughout North America. A known cause has been an absence of clear, detailed directions in court orders relating to surrender, seizure, and storage of weapons and the absence of timely court review processes to monitor compliance.

Reminder: Protection orders that are unclear or that are unenforceable increase risk.

As a result, if restrictions are necessary, one should ensure that detailed instructions are included in the order as to when and to what specific agency weapons are to be surrendered and stored. When risk is high, immediate removal and monitoring to ensure compliance will enhance safety. The targeted parent should be encouraged to have a safety plan in place for extra protection while weapons are being secured.

In connection with constitutionality of the Firearms Act and aboriginal peoples, see: Bellegarde v. Canada (Attorney General) (2004), 235 D.L.R. (4th) 763, [2004] 2 C.N.L.R. 312, (2004), 247 F.T.R. 314, 2004 FCA 34 (CanLII). Special provisions and limitations apply with respect to aboriginal peoples; see: Firearms Act, 1995 c. 39 section 2(3) and 117 and Aboriginal Peoples of Canada Adaptations Regulations (Firearms) S.O.R. 98/205. Note as well the restrictions on judicial authority to make civil orders relating to personal property on reserve land.

8.2.8 Mutual Civil Protection Orders

Mutual protection orders should be avoided, if possible, in coercive domestic violence cases. Potential problems include:

Attempting to determine responsibility for the onset and patterns of coercive domestic violence (identification of the dominant aggressor) is the best course of action.Footnote 101

8.2.9 What if Other Family or Criminal Remedies are Available?

In some cases, restraining orders have been refused when:

Criminal remedies, however, do not preclude a civil remedy: Abe v. Abe, 1995 CanLII 1844 (BC S.C.); Lee v. Orban-Lee, 2009 SKQB 325 at paragraphs 23 to 24. Indeed civil protection orders can offer additional protection after the termination of criminal no-contact orders. See for example: Naylor v. Malcolm, 2011 ONCJ 629.

Family law proceedings, priorities and evidential requirements differ from those in criminal cases. A protective remedy available in a civil case on proof of balance of probabilities may not be available in criminal court. Evidence problems can result in the Crown's inability to prove the criminal case leaving persons genuinely targeted by domestic violence without any protection. In coercive domestic violence cases multiple protection orders (civil and criminal) can enhance safety, provided that the terms are consistent and not contradictory. Moreover in many jurisdictions civil protection orders can include provisions for support, possession of property, and provisions for child safety extending beyond remedies contemplated in criminal proceedings. In addition, in many jurisdictions, civil restraining orders may be issued to prevent non-criminal as well as criminal actions and may be granted for extended periods of time, even permanently in exceptional cases, thus providing protection after criminal remedies expire. Refusal to grant an order solely because similar relief is available elsewhere can result in reduced protection or no protection at all. Some domestic violence prevention statutes state expressly that protective action should not be denied solely because criminal charges or orders are available. See for exampleAlberta: Protection Against Family Violence Act, R.S.A. 2000, C. p-27, s. 2.1.

Family lawyers who seek civil protection orders on behalf of clients will wish to obtain copies of all existing bail provisions and/or other criminal restrictions that apply to the family in order to ensure that the provisions of the civil protection order do not contradict criminal orders.

8.2.10 When Targeted Parties Seek Revocation of a Protection Order

Victim fear, as discussed earlier, has high predictive value, and victim empowerment is an important therapeutic goal in domestic violence cases. On the one hand, ignoring a targeted person's perspective on risk can result in harm and reduce empowerment, an important therapeutic objective. On the other hand, when service providers, professionals, lawyers and courts come across evidence that indicates a risk of harm not perceived by the targeted person, can risk and safety concerns be ignored? What happens to public confidence if indicators of risk are ignored and further domestic violence or death ensues? There are no easy answers to such questions. People targeted by domestic violence are entitled to make decisions about their own lives. Nonetheless such decisions also affect the safety of children and decisions to revoke protective orders can be the result of financial pressure, intimidation, manipulation, or lack of information about risk and danger.

Consequently, Crown prosecutors and family lawyers representing targeted parents should explore the circumstances surrounding requests to revoke protection orders, at a time and place when the requesting party is not in the perpetrator's presence or influence. Steps can be taken to ensure that the request reflects a realistic assessment of safety and does not reflect manipulation, coercion or control. The targeted parent can be encouraged to consult a domestic violence expert, a domestic violence advocate, and a victim services professional before proceeding. If safety is a concern, domestic violence self-assessment tools can be made available to the targeted party to enable a preliminary self-assessment of the level of risk and the potential for lethal outcome (see Part 7 above).

If children are involved, and safety is a concern, consider involving child protection authorities and encourage the targeted party to consider carefully the implications of revoking the protection order. Checklist: When the Targeted Party Seeks Revocation (Criminal or Civil)

The 2012 Michigan Domestic Violence Benchbook, updated and now titled Michigan Judicial Institute (2013) Domestic Violence: A Guide to Civil & Criminal Proceedings – Third Edition online at: http://courts.mi.gov/education/mji/Publications/Documents/Domestic-Violence.pdf in 2013, documented facts indicative of coercion warranting additional scrutiny when responding to a request to vacate a protection order (civil or criminal). Outlined here is the list, modified for a Canadian context:


8.2.11 Protection Orders After Reconciliation

People targeted by domestic violence have numerous reasons for resuming cohabitation with violent partners. Such reasons may have little to do with cessation of abuse or violence. In fact, repetitive reconciliation is an expected and 'normal' pattern in domestic violence cases. Sometimes the risks associated with separation (for example loss of housing, loss of income, loss of immigration status, loss of parenting, or loss of knowledge of the whereabouts of the perpetrator) can appear to outweigh the risks of resuming cohabitation, particularly if the potential for domestic violence can be reduced or removed.

When variation of an order to enable resumption of cohabitation is contemplated, while some provisions (such as no contact, no communication, and exclusive possession of the marital home) are obviously inappropriate, other provisions such as those set out below can offer some degree of continuing protection (when appropriate to the circumstances of the case and permitted by statute):

Provisions to enhance safety and protection during cohabitation can enable the targeted party to obtain help quickly (without additional applications to courts) if risk increases or violence resumes.

In appropriate circumstances, when such provisions are allowable by statute, consult the targeted adult to determine if (s)he would like any or all of such provisions to continue. Note, however, that civil restraining orders during cohabitation are not possible in every Canadian jurisdiction. For example, section 128 of the Family Services Act, S.N.B. 1980, c. F-2.2, makes separation a condition of making of an application for a restraining order.

Ensuring that such orders are clearly explained to each party helps to ensure that the perpetrating party knows his or her obligations and that the targeted person knows when to seek help.

Family and criminal defence lawyers ought, it goes without saying, to advise clients that they may not resume contact or cohabitation in breach of the terms of a court order; the order must be changed first.

8.2.12 Ex Parte Civil Protection Orders

Some of the case law is indicating reluctance to grant restraining orders on a without notice or ex parte basis unless:

Consider the terms of the applicable statute (for example in Ontario, Courts of Justice Act, R.S.O. 1990, c. C.43, Family Law Rules, O. Reg. 114/99, Rule 14, sub rules 12, 13, 14 and 15; and in New Brunswick, Rules of Court, N.B. Reg. 82-73, rule 37.04(2) and (3). In connection with protection orders pursuant to domestic violence prevention statutes, most provincial and territorial statutes authorize (and set out conditions for) without-notice claims for civil protection. The terms of some statutes are more restrictive than others.

In recognition of some of the dangers of granting orders without giving the other party notice or an opportunity to be heard, courts are imposing a duty to disclose full particulars, including information adverse to self-interest. See, for example: J.E.B. v. G.B., 2007 BCSC 1819; Rogers v. Rogers, 2008 MBQB 131; J.E.J. v. S.L.M. 2007 NBCA 33; D.B. v. H.M., 2011 CanLII 81900 (NL PC); J.P. c. R.M.1, 2006 ONCJ 189; Isakhani v. Al-Saggaf 2007 ONCA 539 at paragraph 6.

Family lawyers will wish to advise clients of the importance of full disclosure when applying for protection on an interim ex parte basis as well as the potential implications of disclosures against interest in connection with any associated criminal and child protection proceedings, while keeping in mind professional duties in connection with ensuring the correctness of affidavit evidence. In addition, family lawyers will wish to ensure that the client understands the potential for criminal liability for providing false information in a sworn affidavit or in testimony. Indeed Breese Davies, Erin Dann and Joseph Di Luca, authors of a 2012 report to the Department of Justice, Canada titled "Best Practices where there is Family Violence (Criminal Law Perspective)" recommend that family lawyers representing alleged perpetrators seek permission to discuss the contents of affidavits with defence lawyers before filing affidavits with family courts, presumably both to ensure accuracy and to take into account the potential implications of the contents of the affidavit in the criminal proceeding.

In response to court reluctance to grant interim orders on an ex parte basis, family lawyers may wish to note the reasoning of the Court of Appeal of Manitoba in Baril v. Obelnicki 2007 MBCA 40 at paragraphs 88 to 98 and particularly at paragraphs 90 and 91: "the Supreme Court has said that departure from conventional judicial procedures is fully justified in a statute that focuses on alleviating harm to vulnerable persons". See also the reasoning of the Court of Appeal for British Columbia in Green v. Millar (2004), 246 D.L.R. (4th) 334, (2004), 125 C.R.R. (2d) 153, 2004 BCCA 590. Note as well the comments in Baril v. Obelnicki (2007), 2007 MBCA 40 at paragraphs 91 to 98 wherein the appellate court notes that the Supreme Court of Canada has held that a without notice order is appropriate where "delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice is given".

In thinking about whether or not notice is likely to produce harm in a domestic violence context, consider the following:

8.3 Interim Custody

8.3.1 Legislation

Section 16(2) of the Divorce Act, R.S., 1985, c.3 authorizes interim custody and access orders. Section 16(8) states that the sole consideration is the best interests of the child.

Although the particulars of best interest factors that must be taken into account vary by province and territory, all family law statutes, set out below, require that family law decisions be made on the basis of the best interests of the child.

Provincial and Territorial Legislation

8.3.2 Purpose of Interim Custody Orders

Interim custody orders are intended to provide stability in the short-term care of the child until evidence can be assessed and a decision made. Consequently, the tendency in family law cases has been to decide these cases on the basis of status quo. As a result children are often left in the custody of the parent with whom they are living.

8.3.3 Interim Custody: Domestic Violence Context

Parents who flee from domestic violence are not always able to take the children with them when they leave. The reasons may include:

Removing children from home and school despite lack of resources for children can result in judicial criticism and in legal disadvantage. Yet targeted parents who wait to apply for custody until they have the resources to enable them to accommodate children can encounter difficulty obtaining interim custody as a consequence of the status quo best interests of the child presumption.

Once granted, such orders are difficult to change because:

While interim custody orders do not determine final custody and access outcomes, and interim orders can be changed without proof of material change in circumstances (e.g., T.C.H. v. C.M., 2006 NSCA 111), in practice parents who obtain interim custody often have an advantage at trial.

Implications for family lawyers representing clients targeted by coercive domestic violence:

Criminal Crown prosecutors will also wish to keep in mind that, in a family law context, a criminal provision requiring a perpetrator to remain in the home could have the unintended effect of giving the offender an advantage with respect to interim custody on status quo grounds, particularly if the targeted parent has not been able to remove the children from the family home.

When making an application for interim custody, family lawyers may wish to bring to the attention of the court the parent-child considerations endorsed by Justice MacDonald in the domestic violence interim custody case N.D.L. v. M.S.L., 2010 NSSC 68.

Consider also the factors outlined by the Family Court of Australia (2009) "Matters that may be considered in making interim parenting orders pending a full hearing" in Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged (Family courts, Australia):

In addition to status quo, child safety and protection from harm are central best interests of the child interim custody considerations in domestic violence cases. See, for example: F. (J.D.) v. F. (J.L.), 2009 PESC 28; D.G. v. H.F., 2006 NBCA 36; Dorval v. Dorval, 2006 SKCA 21; V.A.W. v. R.C.L., 2004 CanLII 7043 (ON S.C.) at para. 34; E.A.G. v. D.L.G., 2010 YKSC 21; Presley v. Presley, 2009 SKQB 243.

When a status quo presumption would potentially harm the child, best interests considerations other than status quo can take priority. In G.G. v. H.D., 2009 YKSC 5, for example, Justice Veale held it was premature to order interim supervised access until a custody and access report could be completed and evidence could be presented to the court relating to the impact of domestic violence on the child and on the child's best interests. In Kozub v. Burgess, 2013 MBCA 63 the Court of Appeal of Manitoba held that it was an error, on an interim motion, to make firm findings of fact on the basis of contradictory affidavit evidence and to order shared parenting, taking no "account of the serious allegations of abuse against the father" and the status quo of the mother having been the primary caregiver.

8.3.4 Interim Custody: Status Quo Acquired by Unlawful Means

When a parent acquires custody or primary care of the child by wrongful means (for example, by removing the child from the jurisdiction in a non-emergency case, not informing the other parent about the child's whereabouts, by absconding with the child, by making false ex parte claims for custody and civil protection, by setting up the other parent for criminal conviction in connection with resistance violence (see Part 5 above), by engaging in domestic violence and forcing the other parent out of the home) status quo may have limited weight. See, for example:

While courts will sometimes intervene on an interim basis to restore the status quo as it was prior to a unilateral decision to relocate: Droit de la famille — 114128, 2011 QCCA 2403, note the qualifying comment at paragraph 35 of Jochems v. Jochems, 2013 SKCA 81 that the mother's unilateral decision, in that case, had not been "to escape abuse or to seek out better opportunities for" the child.

8.3.5 Interim Custody and the Criminal Process

Family lawyers will be attentive to the potential for manipulation of family law proceedings via the criminal court (for example the criminalization of resistance violence or minor, isolated acts of domestic violence).

Shaw v. Shaw, 2008 ONCJ 130 is a case on point. The mother in this case assaulted the father. The father waited a month to lay charges. Once the mother was in custody, the father made an application on an ex parte basis on a 'without prejudice' basis for interim custody. When the case came up for review, the father claimed interim custody by virtue of status quo. The mother, as a result of criminal proceeding had effectively been barred from the home and from custody of the children. Justice Pugsley comments on the effects of the criminal proceeding on the family law case:

the way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refused to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendants' family.

Justice Pugsley was critical, in this case, of routine bail provisions and particularly of orders that resulted in the exclusion of a primary care parent from the home thus placing the other parent in a position of superiority in the family law matter for as long as a year, while the criminal matter could be resolved. See also: E.A.W. v. M.J.M., 2012 NSSC 216.

The roots of the problem are fourfold:

See Part 8.5 below in connection with ways in which family and criminal lawyers can work together to prevent such occurrences by paying careful attention to bail conditions.

8.4 Interim Release (Bail)

8.4.1 IntroductionFootnote 104

Family lawyers, representing survivors of domestic violence, will wish, subject to direction and consent from the client, to ensure, as soon as possible that police and Crown prosecutors are given complete information about the pattern of domestic violence as well as information about: the existence of guns or other weapons, the presence of mental health or substance abuse problems, and the record of the accused's compliance with court orders in the past. This information is centrally important to police decision-making and Crown submissions in connection with interim release. It helps the police and Crown to assess victim and witness safety, the likelihood of continuing violence, the need for weapons prohibitions and the need for provisions to respond to mental health and substance abuse problems in order to reduce the potential for future offending. In the absence of detailed information, the police and Crown will be unable to propose provisions specific to the particular safety needs of the victim, children and other family members.

In a coercive domestic violence context, when an accused is released by police or a court pending a criminal trial, the risk to victims and children can increase appreciably, particularly in jurisdictions that do not have programs in place to closely supervise bail conditions, and particularly if the survivor of domestic violence is not informed of and was not consulted about appropriate terms and conditions. Domestic violence crimes differ from other crimes. The degree of intimacy makes contact prior to the criminal trial far more likely in these cases than in other criminal matters. In cases involving continuing risk, the intimate knowledge of the social behavior of the complainant increases the potential for harm. Subject to the importance, discussed earlier, of distinguishing between victims of domestic violence and dominant aggressors, survivors of coercive domestic violence are best placed to know the dangers posed by interim release (or the benefits, such as for example, the ability to communicate about the care of children, or in order to continue employment). No-contact orders are not advisable in every domestic violence criminal case. Much depends on the type of violence, the level of risk, the case circumstances, the best interests of the children, and the perspective of the targeted adult.

Family lawyers representing the targeted parent, and child protection authorities, will wish to ensure that the police and the Crown have copies of all current civil protection orders, all restraining orders, and all agreements or orders affecting child custody and access or child protection proceedings. Police and Crown may wish to consider, as a condition of interim release, including a provision requiring the accused to comply with all conditions pertinent to safety Footnote 105 in such orders and agreements. This could help to improve consistency and make provisions associated with safety across court sectors 'seamless'. It would also help to ensure that all court sectors are working toward a common purpose. Inconsistent provisions can result in confusion and inadvertent breaches of interim release, on the one hand, or in the perpetrator's abuse of inconsistencies, on the other. One must keep in mind, however, that these civil protection orders and/or child protection arrangements may have been granted or agreed prior to the criminal incident. In such cases, additional or alternative interim release provisions may be warranted to enhance safety.

The failure to convey detailed information to the police and Crown can also result in overly restrictive bail provisions. In the absence of complete information, police and Crown may seek standard restrictive provisions in domestic violence cases that are unnecessary given the individual circumstances of the case (for example in cases of a minor, isolated incident of violence associated with separation, or in cases of isolated resistance violence). Sometimes, albeit less often in coercive domestic violence cases, continuing contact may be safe and beneficial to both the victim and children. Overly restrictive provisions can result in confusion, in litigation tactics, such as setting up the party convicted of resistance violence to engage in technical breaches, or in the targeted adult encouraging a perpetrator's breaches of bail provisions. In these circumstances, safety is compromised.

Consequently, it is extremely important for family lawyers to ascertain the particulars and the surrounding circumstances of the domestic violence as well as the targeted adult's views on interim release and, subject to professional obligations relating to confidentiality and privilege, to ensure that police and the Crown are kept informed of these issues. Family lawyers can enhance everyone's safety by taking action to ensure that:

Subject to cases in which a child is a complainant and or must testify as a witness in the criminal case, parent-survivors of coercive violence will also usually be best placed, in consultation with their family lawyers, to know and to be able to advise Crown prosecutors on the best interests of the children in connection with contact, if any, with the accused prior to trial. Many survivors of domestic violence encourage contact between the other parent and the children, provided that provisions are put in place to ensure that the contact is beneficial and safe.

Crown prosecutors and police, as well as family lawyers, will also wish to consider the potential effect of interim release on the preservation of evidence as well as on survivor/victim cooperation. Victim (and child) recant rates are very high in criminal domestic violence cases. While victim recant is discussed in part 9.5, it is important, in connection with interim release, to note here the importance of police, Crown prosecutors, and family lawyers explaining to complainants the potential for manipulation or intimidation prior to the criminal trial. Victims of domestic violence can be taught how to document these matters and who to contact if such circumstances arise. For particulars, see part 9.5 below.

8.4.2 Interim Release: Child Protection Perspective

Katherine Kehoe, reports in her article "Intersection of criminal and family proceedings in domestic violence cases" that child protection authorities in Ontario are increasingly working with parents who, despite a history of domestic violence, seek to reconcile. She notes that interim release provisions preventing an accused's contact with the other parent and with the children until after the criminal hearing (which can be long delayed) can prevent the therapeutic work of child protection authorities, when reunification could be, from a child protection point of view, safe for the children and beneficial for the family. The problem is compounded by stringent time lines in child protection legislation. The inability to work with an accused parent and a child for an extended period of time by virtue of restrictive interim release provisions, could prevent a child's return to his or her family or loss of jurisdiction and in a child's return without therapeutic intervention. Kehoe reports: "In Ontario, children under the age of six who have been in foster care for a cumulative total of one year must be returned to the family or community or made a Crown ward." Although specific timelines vary by jurisdiction, similar provisions (which are designed to respond to the developmental needs of children) appear in child protection legislation throughout Canada. Consequently, if the criminal case involving the family continues for time periods beyond those mandated in child protection legislation, no-contact provisions in criminal interim release provisions could prevent a child protection authority's therapeutic work with the family within the time limits prescribed by statute.

This procedural problem is compounded by child development considerations, pertinent to both family and child protection cases. More particularly, young children require frequent contact (daily or at least repetitive weekly contact for young children) in order to maintain attachment bonds. On the one hand, if contact with the accused parent offers a benefit to the young child (for example, when the accused parent is the primary caregiver and the charge relates to minor, isolated or resistance violence, or when the perpetrator is a positive influence in the child's life) and it is anticipated that, with the support, the family will be able to safely reconcile, frequent contact is critically important to enable the child to maintain his or her attachment bond. On the other hand, young children are particularly susceptible to stress and harm from exposure to domestic violence. All children who have been harmed by coercive domestic violence require safety, security and stability; some will require a stress-free period in order to heal. When contact with the charged parent disrupts the child's attachment with the other parent or with foster parents, frequent contact with the disrupting parent can be counter-productive to the child's security.Footnote 106 Moreover, in a domestic violence context, the value of maintaining the strength of the child's relationship with each parent is considered in connection with other needs associated with the presence of domestic violence, particularly the need for safety and stability in the child's life. The younger the child, the greater the child's need for haste in ensuring stable secure adult attachments, either with the targeted parent or with another adult (for example foster parents) when the targeted parent is unlikely to be able to meet the child's needs within a reasonable time.

After taking into account the type of violence (minor, isolated; resistance; or coercive - see Part 5 above), the advantages of frequent contact with the criminally charged parent in order to preserve the parent-child relationship for the purposes of enabling a potential family reunification, should be balanced by child protection authorities against the impact of frequent contact on each of the following:

Criminal courts do not normally have the expertise needed to assess such matters. Child protection authorities are vested with responsibility to safeguard children. Thus, Crown prosecutors will wish to check, in all domestic violence cases, to see if child protection authorities are involved with the family and if so will wish to consult with such authorities (and if the case is also a family law case, with the family lawyers) in connection with terms of interim release affecting children. Child protection authorities may be able to offer services, such as closely supervised access, access to domestic violence intervention and parenting programs, drug and alcohol and/or mental health treatment programs that could help the whole family heal, while also protecting the children.

Kehoe cautions against the following particular types of interim release provisions:

She recommends instead the following interim release provisions:

One of the difficulties in practice, however, is that, in the absence of statutory provisions (such as those in Ontario) that mandate disclosure of information about criminal and child protection proceedings, negotiations and settlement proceedings can result in particulars of criminal and child protection proceedings associated with the family not being discussed in mediation and/or not being presented to family court judges prior to the signing of consent orders. Refer to part 8.6 below for discussion of settlement proceedings and potential options.

A continuing problem, documented by researchers in many jurisdictions, is that child protection authorities are not always devoting sufficient attention in these cases to special child and adult safety issues associated with the domestic violence context. Reports continue to document child deaths in domestic violence cases despite the involvement of child protection authoritiesFootnote 107 The best option, if at all possible, is to consult a domestic violence expert.

Given that it is not possible to anticipate the large variety of circumstances that could arise at the intersection of child protection and criminal law, most important is that police and Crown establish solid, effective working relationships with domestic violence experts and with child protection authorities in connection with the wording of interim release provisions affecting children. Similarly, child protection authorities will wish to immediately contact police and Crown should they become involved in a case involving ongoing criminal proceedings.

8.4.3 Interim Release: Family Law Perspective

Crown prosecutors will also wish to keep in mind that the family law context is different from the child protection context. In the family law context the parties are not seeking reunification. Instead, separation, a well-documented time of high risk, is occurring or is imminent. In addition, after separation, the targeted parent will no longer be present when the accused parent is exercising contact with the children. When the accused parent has engaged in coercive domestic violence, this can have negative implications for child wellbeing and safety.

Moreover, child protection authorities are not always involved when families are engaged in family law and criminal proceedings, even when the authority has lingering concerns relating to child safety. Examples include: when the non-accused parent has taken action in the family court, in accordance with child protection authority instructions, to seek an order to protect the children (such as for the perpetrator's access to be supervised); when the accused is no longer in the home, and the child protection authorities have no concerns about the targeted parent's parenting. In circumstances where it is believed that the family custody and access order, once granted, can provide adequate protection for the children, child protection authorities will often withdraw from active participation in the case. At this point, the case becomes a private custody and access matter. The practical problem, however, is that, as the socio-legal research has demonstrated, many (perhaps most) protective claims for children are abandoned during family law settlement and negotiation processes. In such circumstances the family court may never be made aware of the evidence in support of the abandoned claim and the protective provisions that caused the child protection authorities to withdraw from the case may never be implemented. (See Part 8.6 below for additional comments on settlement processes.) This is one of the reasons, subject to the targeted parent's views on the safety of the accused's parent's contact with children, that it is important, in coercive domestic violence cases (see Part 5 above), particularly when risk is high (see Parts 6 and 7 above) and there are concerns about the safety of children (see part 5.10 above), for child protection authorities to remain involved in the family law case until: 1) risk is assessed and a subsequent order is made by the family court that provides adequate protection for the children or 2) the child protection authorities are convinced that the perpetrator does not pose a threat to a child or the family.Footnote 108

Nonetheless it is also important to keep in mind that when, on balance, the relationship with the perpetrator offers more benefit than emotional and physical risk to the child, reduced contact between the perpetrating parent and the child can be detrimental to the child and the family. Thus when parent-child contact offers benefits to the child, consideration should also be given to circumstances that favor encouraging frequent child contact with the accused such as:

In some cases - for example in non-coercive (minor isolated or resistance) violence cases, or in low risk PTS-induced domestic violence cases (depending on the level of risk and active participation in treatment), and in other low risk cases in which children benefit from or seek continuing contact with the accused - family lawyers may wish to advise Crown and police to exempt children from no-contact prohibitions and instead to set out clear provisions relating to methods and times of communication for the purposes of arranging parent-child contact, as well as the particulars of allowable parent-child contact.

When the child is a potential witness for the Crown in a related criminal case, police or Crown may wish to deny the accused's contact with the child entirely in the interim release provisions until trial. Nonetheless, even in these circumstances, if contact is beneficial to the child, consideration can be given to alternative provisions to enable preservation of the parent-child relationship, such as carefully supervised contact that ensures preservation of evidence, particularly if criminal proceedings are likely to be delayed.

As a general rule, family courts have more experience and capacity than criminal courts relating to the best interests of children, and to take into account the type and pattern of domestic violence. Consequently, it is important that criminal courts do not limit the ability of family courts to ascertain and respond to the best interests of children in these cases.

Keeping these issues in mind, many of the recommendations outlined in sections 8.4.1 and 8.4.2 will, depending on the circumstances of the case, continue to apply. For example:

In connection with interpreting criminal court evidence and decisions in a family law context, see Part 9 below.

8.4.4 Interim Release: Weapons Restrictions

See part 8.2.7 above in connection with the importance of police, Crown, and family lawyer collaboration in connection with weapons restrictions.

8.4.5 Protective Provisions When an Accused is Not Released

Victim recant rates are high in criminal domestic violence cases. Research, discussed at part 9.5 below, documents the intimidation and manipulation of victims from jail. After consulting the 'victim' client, family lawyers, police and Crown may wish to consider the advisability of provisions set out at 515 (12) of the Criminal Code, directing the accused, detained in custody, to abstain from communicating with the victim or with other witnesses. If no-communication and no-contact provisions are to be included, copies should be provided to the facility where the accused is to be held.

If, despite the detention, contact is to be allowed between the accused and the complainant or to make arrangements to see the children, it is important to ensure that the allowable methods of communication and contact are clearly set out in the document. If communications to arrange contact with the children are to be routed through a third party (agreeable to both parents), it goes without saying that the third party should be contacted to ensure that he or she is in agreement with the provisions. Alternatively, consideration can be given to making prohibitions on contact subject to any provisions relating to contact with children set out in a subsequent family court order or authorized by child protection authorities after the date of the criminal prohibition.

8.5 Child Abduction: Family, Criminal & International Law

8.5.1 Introduction

Family lawyers should be aware of the potential for child abduction in domestic violence cases. Historically those who abducted children tended to be contact parents taking children away from primary-care parents. Increasingly, today many 'child abductors' are primary-care parents fleeing situations or communities where the abusive relationship occurred.Footnote 109 Indeed domestic violence is identified in empirical research as one of the indicators of the risk of child abduction (both by perpetrators and by targeted parents).Footnote 110

While comprehensive discussion of this issue is beyond the scope of this report, the topic cannot be ignored entirely, given the empirical documentation of risk and connections between civil and criminal responses.

Both male and female children are abducted; many are of pre-school age.Footnote 111 Abduction may be by either parent. Increasingly abductors are custodial mothersFootnote 112 many of whom are fleeing domestic violence.Footnote 113 Perpetrating parents abduct in order to threaten, to 'get even with', to intimidate or to control children or the other parent; parents targeted by domestic violence abduct when they fear abduction is the only way to protect themselves and the children.Footnote 114 Risk is especially high in cases of parental mental health and personality problems.Footnote 115

At the very least, family lawyers should discourage abduction and advise any clients considering fleeing the jurisdiction with a child of potential harm to the child and of potential criminal implications for themselves pursuant to sections 282(1) and 283 (1) of the Criminal Code. See, for example: R. v. Melville, 2011 ONSC 5697.) Clients should also be advised that fleeing a jurisdiction with a child without a court order can have a serious and negative impact on subsequent custody and access determinations.

If the domestic violence is so severe that the client is being advised by professionals or experts to flee the jurisdiction, the best option is to obtain a custody order allowing the move on an emergency, ex parte interim basis. In an extreme emergency, one should ensure that police and child protection authorities are involved and condone the decision to leave the jurisdiction with the children, and that those authorities are prepared to document their advice to flee as well as the level of danger involved.

8.5.2 Civil Child Abduction Within Canada

When a parent removes a child from one Canadian jurisdiction in which the child is settled to another Canadian jurisdiction, without the consent of the other party and without a court order, the left-behind parent will often apply on an emergency ex parte basis for interim custody and the return of the child. In such circumstances, the order (commonly referred to as a chasing order) will often be granted. All Canadian jurisdictionsFootnote 116 provide for non-enforcement and variation of custody orders from other provinces and territories when it is determined that "serious harm" would result to the child if the child were to be returned to the custody of the left-behind parent. These serious harm provisions are, however, generating two lines of authority in connection with whether or not domestic violence constitutes "serious harm".

In connection with within-Canada abduction, some courts have ruled that domestic violence can constitute grave risk of harm to a child's primary caregiver and thus evidence of serious potential harm to the child, leading to non-enforcement. For example, the Nova Scotia Court of Appeal endorsed safety and best interests of the child considerations in upholding the trial judge's decision not to enforce an extra provincial custody order prior to holding a hearing to assess child safety in R.K.G. v. M.A.G., 1997 CanLII 9857 (NS C.A.) (CanLII). See also S. v. S., 2004 CanLII 1233 (ON S.C.) (CanLII) at paragraphs 23-24 for a discussion of connections between exposure to domestic violence and serious risk of psychological harm to the childFootnote 117 as well as S.A.G. v. C.D.G., [2009] YKSC 21 at paragraphs 30 to 33; Pollastro v. Pollastro (1999), 43 O.R. (3d) 485, (1999), 171 D.L.R. (4th) 32, (1999), 45 R.F.L. (4th) 404, (1999), 118 O.A.C. 169, 1999 CanLII 3702 (ON C.A.) (CanLII). Note that these cases tend to be severe, coercive domestic violence cases.

Nonetheless other courts are ruling that domestic violence (without direct child abuse) will not usually constitute evidence of serious harm to the child for the purposes of within Canada non-enforcement. See, for example: Brooks v. Brooks (1998), 41 O.R. (3d) 191, (1998), 163 D.L.R. (4th) 715, (1998), 39 R.F.L. (4th) 187, (1998), 111 O.A.C. 177, 1998 CanLII 7142 (ON C.A.) (CanLII); Peynado v. Peynado, 2004 ONCJ 36 CanLII and Pelletier-Murphy v. Murphy, 2006 ONCJ 190. In such cases the child may be ordered returned. If an interim custody (chasing) order has been granted, on return the child may be subject to an interim custody order in favour of the left-behind parent. In such circumstances, the abducting parent can have great difficulty, in the absence of clear evidence of severe coercive domestic violence or child abuse on the part of the other party, refuting a negative assumption that he or she was acting to prevent the child's contact with the other parent.

In short, fleeing a jurisdiction with a child in the absence of a court order can have serious negative implications for the fleeing parent even for a parent fleeing from domestic violence.

8.5.3 International Child Abduction

All Canadian provinces and territories adhere to the Hague Convention on the Civil Aspects of International Child Abduction.Footnote 118 For discussion of considerations in response to an application for return of a child to a non-Convention country in a domestic violence case, see: Isakhani v. Al-Saggaf, 2007 ONCA 539 (CanLII) and Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61 (CanLII), leave to appeal dismissed with costs: Theresa Shortridge-Tsuchiya v. Sakae Tsuchiya, 2010 CanLII 37857 (S.C.C.) and Droit de la famille – 131294, 2013 QCCA 883.

As of 2007, two thirds of abducting parents under the Convention were primary-care parents, many of them reportedly fleeing from domestic violence.Footnote 119 Although on the whole, the operation of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is considered an international success, many academic and judicial commentators are alarmed at the operation of the Convention in domestic violence cases.

Article 3 of the Hague Convention does not expressly exempt relocating to escape domestic violence from its definition of wrongful removal or retention. Moreover, the fact that the fleeing parent had a custody order is not necessarily a defence. The meaning of custody under the Hague Convention is not the same as 'custody' as the term is used in Canadian family law cases. Custody under the Hague Convention is associated with care of the person of the child and particularly with the right to determine child residence. Such 'custody' rights are interpreted broadly. For example, a parent exercising limited supervised access may be deemed to have custody entitlements if that parent retains a right to deny, to consent to, to restrict, or to determine child residence. Similarly, courts retain custody rights for purposes of the Hague Convention pursuant to interim orders and other orders that reserve, to the court, decision-making with respect to a child's residence.Footnote 120 Thus agreements and orders that restrict a custodial parent's right to change a child's residence without notice and consent can create custodial entitlements for purposes of Hague Convention enforcement if the parent with custody relocates with the child without a court order authorizing the relocation.Footnote 121 Custody rights under the Hague Convention may arise by statute, by judicial or administrative decision, or by agreement having legal effect.Footnote 122

Exceptions to the return of the child are outlined in Articles 13 and 20. The court is not bound to return a child, for example, if the party opposing return establishes non-exercise of custody rights by the other party at the time of removal, consent or acquiescence to removal,Footnote 123 grave risk to child (e.g. "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation"), or the child objects to his or her return and has attained sufficient age and maturity to make it appropriate to take into account those views.Footnote 124 Note the discretionary nature of these provisions as well as the importance of considering the degree to which the child has been influenced by the abducting parent. For example, see the Court of Appeal for British Columbia's endorsement of Justice Martinson's decision in Beatty v. Schatz, 2009 BCSC 706 (CanLII), 2009 BCSC 706 in Beatty v. Schatz, 309 D.L.R. (4th) 479, 69 R.F.L. (6th) 107, 2009 BCCA 310 (CanLII). Courts may also decline to return children when one full year has elapsed and the child has become well settled in the new environment. In Kubera v Kubera, 2010 BCCA 118 (CanLII) the Court of Appeal for British Columbia endorses Justice Donna Martinson's finding that the appropriate time to ascertain whether or not the child is 'well settled' is as of the date of hearing.

Exceptions to return have been construed narrowly: W.(V.) v. S.(D.), [1996] 2 S.C.R. 108, (1996), 134 D.L.R. (4th) 481, (1996), 19 R.F.L. (4th) 341, 1996 CanLII 192 (S.C.C.) (CanLII) at paragraph 37. In domestic violence cases, opposition to return pursuant to the Convention is most likely to arise in connection with claims that the return would pose a grave risk of harm to the child. From a domestic violence evidence-based perspective, ordering the return of a child from the location in which a child is living with the targeted parent to the jurisdiction or custody of the domestic violator who engages in coercive domestic violence would seldom be in the best interests of a child. Nonetheless Hague Convention return cases are not decided solely on the basis of child best interests. Once wrongful removal or retention is established, the party opposing return must establish the return would expose the child to grave risk of harm pursuant to Article 13 (1)(b).Footnote 125

W.(V.) v. S.(D.), [1996] 2 S.C.R. 108, (1996), 134 D.L.R. (4th) 481, (1996), 19 R.F.L. (4th) 341, 1996 CanLII 192 (S.C.C.) (CanLII) sets out Canadian criteria for 'grave risk of harm' at paragraph 37. The case states that the interests of children, who have been wrongfully removed, are ordinarily best served by returning them to their habitual residence jurisdiction for determination of the merits of custody.

The onus to prove grave risk to the child pursuant to Article 13 (1) (b) is on the party claiming the exception: Thomson v. Thomson, [1994] 3 S.C.R. 551, (1994), 119 D.L.R. (4th) 253, [1994] 10 W.W.R. 513, (1994), 6 R.F.L. (4th) 290, (1994), 97 Man. R. (2d) 81, 1994 CanLII 26 (S.C.C.); Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII). Appellate courts are endorsing the following criteria: Does the grave risk of psychological or physical harm to the child on return amount to more than normal psychological disruption associated with removal? Does it amount to an intolerable situation (Thomson v. Thomson)?Footnote 126 Is the evidence of domestic violence sufficiently weighty so as to exceed a 'best interests of the child' consideration? Best interests of the child determinations are thus left to the child's habitual residence unless a decision is made not to return the child (Thomson v. Thomson).

When domestic violence has been held to constitute grave risk, the facts have reflected a pattern of coercive domestic violence affecting safety. In such circumstances the risk of harm to a parent upon whom the child is dependent can be considered in connection with risk to the child. Thus Pollastro v. Pollastro (1999), 43 O.R. (3d) 485, (1999), 171 D.L.R. (4th) 32, (1999), 45 R.F.L. (4th) 404, (1999), 118 O.A.C. 169, 1999 CanLII 3702 (ON C.A.) (CanLII) 128 states: "In considering whether return would place the child in an intolerable position it is relevant "to take into account the serious possibility of physical or psychological harm coming to the parent on whom the child is dependent". See also: Husid v. Daviau, 2012 ONCA 655, application for leave to appeal dismissed with costs: Uri Landman Husid v. Hélène Marie Thérêse Daviau, 2013 CanLII 6706 (SCC); Droit de la famille – 111062, 2011 QCCA 729, application for leave to appeal dismissed without costs in L.M. c. E.A., 2011 CanLII 82379. In Achakzad v. Zemaryalai, 2010 ONCJ 318 Justice Murray clearly states that grave risk of harm to the child's primary caregiver can constitute grave risk of harm to the child. In Landman v. Daviau, 2012 ONSC 547 (CanLII) Justice Perkins denied a request to return the child to Peru in a domestic violence case on the basis that the return would expose the child to an intolerable situation, and more particularly, "being in constant fear of the mother's being accosted and publicly berated ... with the need to seek police intervention, or worse, of the being wrongfully taken or wrongfully overheld by her father and his family with the use of physical force to achieve their goal".

Often, however, domestic violence is considered a 'best interests of the child' issue rather than a grave risk to the child consideration: Grymes v. Gaudreault 2004 BCCA 495 (CanLII); Mahler v. Mahler, [1999] M.J. No. 580 (M.B.Q.B.), [2000] M.J. No. 46 (M.B.C.A.) (QL); Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII); Finizio v. Scoppio-Finizio 1999 CanLII 1722 (ON C.A.) (CanLII); Cannock v. Fleguel, 2008 ONCA 758 (CanLII); T.B. c. M.T., [2004] R.D.F. 174 (S.C.), [2004] R.D.F. 28 (QCCA) (QL).Footnote 127 See also Ireland v. Ireland, 2011 ONCA 623.

Unless the evidence demonstrates serious concerns about safety (as in Pollastro or in Achakzad v. Zemaryalai), Canadian courts will often respond to the challenge of balancing the objectives of the Hague Convention with safety concerns in domestic violence cases by making use of undertakings and return provisions. Domestic violence research is indicating, however, a strong concern that undertakings and return provisions may not produce satisfactory results.

Considerable international attention is currently being devoted to this problem. Family lawyers may wish to consult the following sources for additional information: Hague Conference on Private International Law, The Judges' Newsletters on line at http://www.hcch.net/index_en.php?act=publications.listing&sub=5 and The Hague Domestic Violence Project at: http://gspp.berkeley.edu/global/the-hague-domestic-violence-project

8.5.4 Concluding Comments on Child Abduction for Family Lawyers

In short, discourage parents from leaving any Canadian jurisdictions with children without a court order, notice and clear consent from the other parent in writing, or clear evidence of dangerous circumstances supported, if at all possible, by documentation of risk by police and or child protection authorities.

8.6 Settlement Processes: Criminal & Family

It is important that Crown prosecutors consider the implications of plea negotiations on family law and child protection proceedings. When a complainant's family lawyer is known to the Crown prosecutor, the Crown can consider discussing the implications of potential plea negotiation options with the complainant's family lawyer as well as, when relevant, with child protection authorities. For example, a decision to proceed with a peace bond rather than a criminal charge may be interpreted by a family or child protection court as indicative of limited seriousness. While this may be entirely appropriate in some cases, in others cases, when such decisions are based on criteria other than reduced concerns about safety, the decision can cause confusion in the family law context.

Moreover, peace bond evidence, while informative and relevant as to proof of the other party's fear, is not necessarily conclusive evidence of admission of criminal responsibility.

For similar reasons, Crown and child protection lawyers will wish to keep in mind the nature of settlement processes in the family law context. The vast majority of family law cases are settled in negotiation, mediation, or judicial dispute resolution processes. The fact that domestic violence has been documented and that claims for the civil protection and for protection of children (such as claims for supervised access ) have been made in preliminary family court documents is not an assurance that the evidence and claims will be presented to (much less endorsed by) a family court judge, a mediator or an arbitrator. In fact, the vast majority of family law cases do not result in contested hearings followed by judicial decision. People who engage in domestic violence often obtain unsupervised access and even custody of children in family domestic violence cases despite circumstances indicating risk of harm. This is often the product of settlement rather than a judicially imposed decision.Footnote 128 In some cases, parents may not be aware of the danger that some perpetrators pose to children.Footnote 129 Moreover, systemic analysis of domestic violence cases in family law systems reveals that the majority of protective claims are abandoned during negotiation and mediation processes prior to trials and hearings.Footnote 130 While in some of these cases this is entirely appropriate because concerns about safety no longer apply, empirical research is also disclosing a well-documented phenomenon of parents agreeing to post-separation parenting arrangements in domestic violence cases despite continuing, serious concerns about child safety.Footnote 131 The reasons may include, in addition to violator pressure and intimidation, lack of resources, domestic violence -induced susceptibility to settlement suggestion, as well as deficits in domestic violence screening tools and deficits in specialized domestic violence professional knowledge. For more detailed discussion, see the footnote.Footnote 132

Child protection authorities should not assume that once a parent has made a protective claim in accordance with child protection authority instructions, the claim will be maintained throughout the family law process. Instead, the better response is for child protection authorities to stay informed of the progress of the family law case so that they can intervene, when necessary, to ensure adequate protections for children.

8.6.1 Settlement Discussion: Family to Criminal

Normally communications and disclosures made during settlement processes such as mediation, judicial dispute resolution, and settlement negotiations are subject to evidence rules associated with settlement privilege. Full discussion is beyond the scope of this report, see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 and Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32 for a useful discussion of exceptions and pertinent case law.

In a high risk domestic-violence context, family lawyers and mediators may wish to note particularly the public safety exception set out in Smith v. Jones, [1999] 1 S.C.R. 455. In Brown, the Nova Scotia Court of Appeal comments specifically on the applicability of public safety exceptions to all forms of privilege, including settlement privilege. Thus, when disclosures are made during settlement discussions that indicate high levels of risk and particularly a potential for lethal outcome, family lawyers may wish to consider the exceptions to privilege and confidentiality set out in Brown and in Smith v. Jones.

8.7 Limitations on Disclosure to Criminal Sector: Discovery & Mandatory Disclosure

Family law and child protection statutes in all provinces and territories mandate document disclosure and, in many circumstances, discovery of the parties prior to hearings and trials. Family lawyers, child protection lawyers, and clients who obtain information from the other party in mandatory disclosure processes prior to trial may not be at liberty to divulge such information to police in the absence of consent, express statutory authority, or a court order.

The Supreme Court of Canada states, in Juman v, Doucette, [2008] 1 S.C.R. 157 that, in the absence of exceptional circumstances, a party in a civil case is not at liberty to disclose evidence that was disclosed in discovery - including evidence of criminal conduct - to police or to outside parties to the litigation without a court order. The court held that parties who divulge information as a result of mandatory disclosure requirements in civil litigation do so in accordance with an implied undertaking and a measure of protection.

The court goes on to state that, while a court has discretionary power to grant exemptions and variations in connection with such undertakings, unless an express statutory exemption overrides the implied undertaking, the onus will be on the person seeking an exemption to the implied undertaking to demonstrate, on balance of probabilities, that the public interest has greater weight than the values implied undertakings are designed to protect.

Similar implied undertakings of confidentiality have been recognized in connection with documents disclosed by opposing parties in civil proceedings as a result of compulsory processes of production, see Ring v. Canada (Attorney General), 2009 NLCA 45; International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355.

One must keep in mind, however, the statutory exception qualification identified in Juman v. Doucette. The applicable Rules of Court and the relevant family law and child protection statutes should be checked for statutory authority to disclose. For example, as Davies, Dunn, Di Luca (2012) point out in a recent report prepared for the Department of Justice,Footnote 133 Family Law Rules, O Reg 114/99 for Ontario, Rule 20(25) on 'Questioning A Witness and Disclosure' provides, at Rule 20 (25), financial statements and documents disclosed during document discovery may be disclosed in limited circumstances. Rule 20(25) in Ontario, for example, states that such documents may be used for other purposes:

When statutory exceptions apply, it may be possible to divulge such information without a court order provided that statutory criteria are met. Note as well, in connection specifically with domestic violence cases, the 'immediate and serious danger' qualification in Juman v, Doucette, namely: "in situations of immediate and serious danger, the applicant may be justified in going directly to the police without a court order." Note as well, however, the comment in the case that exemptions "not amounting to serious and immediate serious danger should be left with the courts."

Juman v. Doucette identifies factors that may be taken into account by courts in connection with the public interest when deciding whether or not to authorize disclosure:

The case states that the public interest in the prosecution of a crime will not necessarily trump a citizen's privacy interest in statutorily compelled information.

8.7.1 Limitations on Use of Mandatory Civil Disclosure in Criminal Proceedings

The Supreme Court of Canada held, in R. v. Nedelcu, that compelled testimony provided in a civil proceeding is admissible against an accused person in a criminal trial, for the purpose of cross-examining an accused and challenging his or her credibility where the evidence is not "incriminating." R v. Nedelcu [2012] 3 S.C.R 311. (See also: Juman v. Doucette at paragraphs 56 and 57.)

In a domestic violence context, on the one hand are concerns, from a victim and child safety perspective, about pertinent evidence from the family law or child protection case not being admitted and considered in the criminal case. On the other hand, when accused in criminal cases are protected from self-incrimination such that evidence compelled in the family law or child protection case cannot be used against the accused in the criminal case (subject to "prosecution for perjury or the giving of contradictory evidence"), concerns about proceeding with the family law and child protection proceedings prior to the final decision in the criminal case, may be reduced. Reduced due process concerns might enable family and child protection cases to proceed more quickly while criminal cases are on-going.

8.8 Privacy Rules Affecting Disclosure: Relevance of PIPEDA to Civil Litigation

Refer to the Office of the Privacy Commissioner of Canada's (2011) publication PIPEDA and Your Practice A Privacy Handbook for Lawyers (Ottawa: Government of Canada) for guidance.Footnote 134

8.9 Applications by Perpetrators for Disclosure of Files Pursuant to Freedom of Information Legislation

Family lawyers representing victims of domestic violence will wish to maintain a good, solid working relationship with police, Crown, and, when relevant, child protection authorities throughout the family law process.

One can anticipate applications by perpetrators for access to the perpetrator's own police investigation files pursuant to Freedom of Information Acts, particularly when criminal charges are withdrawn or the accused is acquitted. The purposes can include efforts to obtain information about witnesses who made complaints to the police, a belief that the files may contain information that can be used to embarrass or impeach the credibility of witnesses or the targeted adult, a desire to call into question police procedures in domestic violence cases, or the belief that the files may contain exonerating information. From a targeted parent perspective, concerns about the release of such information relate to privacy, the potential for misuse of the information, the potential for retaliation against children and others who have provided information to police, potential harassment or intimidation of those who have provided assistance, as well as concerns about personal safety. Such applications are governed by different rules and principles from those governing disclosure in the civil case because, in these cases, perpetrators are applying for access to their own police files. Presumably, however, information once disclosed could be used for cross-examination and for other purposes in the family law or child protection case.

Family lawyers will wish to make note of the evolving case law on this issue, much of it from Ontario, wherein police have successfully resisted full disclosures of police files in domestic violence cases on the basis of privacy, law enforcement privilege, public safety, and or on the grounds that the disclosure would reveal police investigation tools used in domestic violence cases:

See also Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 (CanLII), [2010] 1 SCR 815 in connection with exclusions from disclosure in the Freedom of Information and Protection of Privacy Act, R.S.A. 1990, c. F.31 on grounds of solicitor-client privilege and the right to exercise discretion to exclude disclosures relating to law enforcement.

In connection with alleged perpetrators seeking access, pursuant to 'Freedom of Information' legislation, to workplace records and risk assessments associated with new employer obligations in Ontario to protect employees from domestic violence, see: Woodstock (City) (re), 2012 CanLII 10571 (ON IPC).Footnote 135

8.10 Disclosure and Production of Criminal Conviction Records for use in a Family Law or Child Protection Context

8.10.1 Introduction

Although, for the reasons set out in footnote, particulars of Crown briefs and police files can be very helpful in family law and child protection cases,Footnote 136 in practice privacy concerns and limited resources can make these records difficult for civil litigants to obtain, particularly in custody and access cases. In the absence of consent, processes to ensure disclosure and to obtain production are often cumbersome, time consuming and expensive. Not uncommonly the cost is beyond the reach of many litigants, particularly in jurisdictions with limited legal aid programs. Given the legal complexities of the case law associated with the production of criminal records in a family and child protection context, the discussion here will merely provide a general overview of pertinent considerations. Detailed discussion is beyond the scope of this report.

8.10.2 Criminal Convictions

Some jurisdictions now require automatic disclosure of child protection and criminal conviction records in custody and access cases. This information can often be obtained on consent or pursuant to summons. Refer also to the Canada Evidence Act, sections 12 and 23. Most provincial and territorial Evidence Acts contain similar provisions. In connection with prior court findings, see Part 9 below.

8.10.3 Disclosure and Production of Police Records in Family and Child Protection Case

The best option, mentioned earlier, is for family lawyers and child protection lawyers to meet as soon as possible with Crown and police to discuss what information from the criminal investigation and from the criminal proceeding may be disclosed and shared on consent. Because rules relating to disclosure are broader than rules relating to admission, it may be helpful as well to explore and to seek to consolidate cross-sector understandings on subsequent admission and use of such information (subject, of course, to judicial evidence rulings in connection with admissibility in connection with issues such as relevance, reliability, hearsay, privacy and public interest).

The case law indicates that when the criminal investigation or proceeding is on-going the Crown and police may resist disclosure on the basis of public interest immunity in order to protect the investigation. In the absence of consent, a motion or application for production, on notice to the Attorney General, police and/or Crown, may be necessary. Production of Police Records to Child Protection Authorities

Child protection legislation in most Canadian jurisdictions authorizes production of third party records, including police records, to child protection authorities. Manitoba's Child and Family Services Act, C.C.S.M. c. C80, section 18.4(1.1) requires police disclosure. Generally, the threshold for production is relatively low.

For the most part, courts have been ruling in favour of disclosures of police records to child protection authorities. Pertinent cases include:

Children's Aid Society of Algoma v. P.(D.) includes a qualification, however, with respect to disclosure. The case states that exceptionally sensitive records touching on private matters could be protected from disclosure and production, but that "in most cases production of relevant police records to a Children's Aid societies will not undermine reasonable expectations of privacy." Nonetheless, the qualification and associated vetting processes can create obstacles and delays in disclosure. Moreover, Breese Davies, Erin Dunn and Joseph Di Luca (2012) report, in a paper written for the Department of Justice titled "Best Practices where there is Family Violence (Criminal Law Perspective)" that, in practice, child protection authorities are continuing to report problems obtaining timely, full disclosure from police in domestic violence related child protection cases. Thus attending to disclosure matters as soon as possible is imperative, particularly in a child protection context where mandatory deadlines apply. Production of Police and Crown Records to Parties in Family Law Cases Other Than Child Protection Authorities

In the absence of consent, the cases indicate that the onus to obtain documents is more onerous for parties in family law cases than for child protection authorities in child protection cases. Generally, in connection with third party production, statutory rules require proof that it would be unfair to proceed with the civil case without the documents and that the documents are not privileged. Refer to the applicable statute. See, for example, rule 19 (11) of Ontario's Family Law Rules, O Reg 114/99.

Nonetheless, orders for production of criminal records and Crown briefs are being made where criminal issues are connected to child best interests, for example: Porter v Porter, 2009 CanLII 18686 (ONSC); Bellerive v. Hammond, 2003 CanLII 68790 (ONCJ).

P.(D.) v. Wagg, (2004), 71 O.R. (3d) 229, (2004), 239 D.L.R. (4th) 501, (2004), 184 C.C.C. (3d) 321, (2004), 120 C.R.R. (2d) 52, (2004), 187 O.A.C. 26, 2004 CanLII 39048 (ON C.A.) sets out a governing test on disclosure and production of Crown briefs and police files. The case sets out an appropriate screening process for Crown vetting documents prior to production, for considering privacy interests, and for determining whether the public interest in non-disclosure and non-production overrides the social interest in "seeing that justice is done in civil cases as well as criminal cases".

See also: N.G. v. Upper Canada College, 2004 CanLII 60016 (ONCA) in connection with production, resisted by the Crown, of a video tape of the plaintiff made by the police for use in the criminal case, to the defendant in the civil case. The case endorses the use of the screening and vetting mechanism set out in Wagg. SW v. EB, 2012 SKQB 108 (CanlII) extends the application of Wagg to Saskatchewan in connection with a father's claim, in a family law case, that he would only consent to a court ordered assessor of the child in the family law case being allowed to view police interview tapes relating to possible sexual abuse by the father, if he, the father, was provided with copies of the tapes. See also: Wong v. Antunes, 307 D.L.R. (4th) 385, 95 B.C.L.R. (4th) 73, 2009 BCCA 278 2009 BCCA 278; College of Physicians and Surgeons of Ontario v. Metcalf (2010), 98 O.R. (3d) 301.

Given the likelihood of delays associated with vetting processes prior to production (not to mention delays associated with complex issues relating to admissibility), initiate disclosure and production processes as early as possible in order to prevent delay. Disclosure and Production of Police and Crown Records: Alternatives

Alternative options include:

8.11 Responding to Applications for Medical and Health Records

8.11.1 Medical and Health Records: Domestic Violence Context

Family lawyers will wish, in domestic violence cases, to be prepared to respond to applications for disclosure of medical and counseling records for use in the family, child protection, or criminal case. Clients subjected to domestic violence are likely to be concerned about the potential use of such information, particularly then the application for production is made on behalf of an alleged perpetrator of domestic violence. Concerns relate to the potential use of the information:

Concerns, from a domestic violence victim perspective, include:

Socio-legal domestic violence research documents circumstances to consider when thinking about relevance and probative value of such records, namely:

8.11.2 Medical and Health Records: Legal Context

The starting premise, per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ., in M.(A.) v. Ryan, [1997] 1 S.C.R. 157, (1997), 143 D.L.R. (4th) 1, [1997] 4 W.W.R. 1, (1997), 42 C.R.R. (2d) 37, (1997), 4 C.R. (5th) 220, (1997), 29 B.C.L.R. (3d) 133, [1997] 1 S.C.R. 157, 1997 CanLII 403 (S.C.C.) is that "everyone owes a general duty to give evidence relevant to the matter before the courts, so that the truth may be ascertained."

In a family law context medical and health records may be produced: Relevance

Parties seeking the production of mental or medical health records of other family members must establish relevance and satisfy the requirements of applicable provincial court rules and statutes. Discussion here is limited to general principles.

The case law states that the obligation to disclose the existence of documents and the obligation to produce are separate obligations. The former relates to all pertinent documents.

If an application to produce documents is directed to a non-party, the application may require additional proof of material relevance and the inequity of proceeding to trial without examination of the document. According to the case law, the onus to prove relevance (and, when applicable to third parties, material relevance and inequity) rests with the party seeking production F., K. (Litigation guardian of) v. White (2001), 53 O.R. (3d) 391, (2001), 198 D.L.R. (4th) 541, (2001), 142 O.A.C. 116, 2001 CanLII 24020 (ON C.A.); Grewal v. Hospedales (2004), 33 B.C.L.R. (4th) 294, 2004 BCCA 561.

The cases are also indicating that relevance associated with production must be more than a 'fishing expedition'and that relevance must be based on evidence, not on speculative assertion or on discriminatory or stereotypical reasoning: A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, (1995), 130 D.L.R. (4th) 422, (1995), 103 C.C.C. (3d) 92, (1995), 33 C.R.R. (2d) 87, (1995), 44 C.R. (4th) 91, (1995), 88 O.A.C. 241, [1995] 4 S.C.R. 536, 1995 CanLII 52 (S.C.C.); Cojbasic v. Cojbasic, 2008 CanLII 8256 (ON S.C.).

In a family law context, relevance is often associated with proof, on balance of probabilities, that the documents will disclose health or mental health problems connected to the capacity to care for a child. Has the party seeking production established relevance in connection with parenting or the child's best interests?

If the applicant is unable to prove relevance applications for production are denied. However, once material relevance is established, the cases indicate that the onus falls on the party claiming privilege to convince a court that the documents should not be produced on grounds of privacy and privilege. Privacy and Privilege: Production of Medical and Mental Health Records, Family Law

Mental health and medical records are also governed by provincial and territorial Mental Health and Medical Acts. In the absence of client consent or waiver, medical and mental health professionals as well as other professionals and institutions will often have a professional ethical or statutory duty to object to production to persons other than the patient or client on the basis that production would harm a person and or interfere in treatment. Quebec recognizes a statutory privilege in connection with physicians pursuant to section 9 of its Charter of Human Rights and Freedoms. Public policy issues in a domestic violence include the public interest in encouraging victims of domestic violence to obtain counselling and the concern that broad access to records could discourage people, negatively affected by domestic violence, from seeking help.

If the relevance of the records has been established, the cases indicate that the onus falls on the party claiming privilege to convince a court that the documents should not be produced on ground of privacy and privilege. La Forest, L'Heureux-Dubé and Gonthier JJ. suggest, in A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, (1995), 130 D.L.R. (4th) 422, (1995), 103 C.C.C. (3d) 92, (1995), 33 C.R.R. (2d) 87, (1995), 44 C.R. (4th) 91, (1995), 88 O.A.C. 241, [1995] 4 S.C.R. 536, 1995 CanLII 52 (S.C.C.), a broad and open-ended, and evolving definition of private records. Thus private records, or records in which a reasonable expectation of privacy lies, may include medical or therapeutic records, school records, private diaries, social worker activity logs, and so on.

Privilege is assessed in accordance with the principles set out in M.(A.) v. Ryan, [1997] 1 S.C.R. 157, (1997), 143 D.L.R. (4th) 1, [1997] 4 W.W.R. 1, (1997), 42 C.R.R. (2d) 37, (1997), 4 C.R. (5th) 220, (1997), 29 B.C.L.R. (3d) 133, [1997] 1 S.C.R. 157, 1997 CanLII 403 (S.C.C.) and the Wigmore test. The cases indicate that private medical and mental health records do not necessarily enjoy privilege as a class: A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, (1995), 130 D.L.R. (4th) 422, (1995), 103 C.C.C. (3d) 92, (1995), 33 C.R.R. (2d) 87, (1995), 44 C.R. (4th) 91, (1995), 88 O.A.C. 241, [1995] 4 S.C.R. 536, 1995 CanLII 52 (S.C.C.); M.(A.) v. Ryan, [1997] 1 S.C.R. 157, (1997), 143 D.L.R. (4th) 1, [1997] 4 W.W.R. 1, (1997), 42 C.R.R. (2d) 37, (1997), 4 C.R. (5th) 220, (1997), 29 B.C.L.R. (3d) 133, [1997] 1 S.C.R. 157, 1997 CanLII 403 (S.C.C.).

In the absence of statutory or class privilege, privilege is assessed on a case-by-case basis in accordance with common law principles and the "Wigmore test":

While courts expect litigants to accept intrusion to the extent necessary to get at the truth in civil litigation, the cases indicate that this does not grant the other party a license to delve fully into the other party's private affairs. While courts have protected marital counselling and child counselling records from disclosure (for example L.M.B v. I.J.B, 2005 ABCA 100), courts will often respond to privilege and privacy claims by imposing conditions on the scope of production or the use of the information. For example, orders of partial disclosure are including provisions such as: disclosure of a limited number of documents, editing by the court to remove non-essential material, imposition of conditions on who may see and copy the documents (refer to Saskatchewan (Social Services) v. RW, 2012 SKCA 75 in connection with concerns about restrictions affecting child protection authorities), removal of information identifying non-parties, imposition of conditions on the return of documents and provisions specifying how invasions of privacy should be limited (in civil actions) to that necessary to do justice in the civil litigation:

Consequently, when the parties are involved in multiple proceedings (family, criminal, and child protection) family lawyers, child protection authorities, criminal defense lawyers and the Crown, will wish to consider very carefully the effects, positive and negative, of inclusion of conditions that limit the scope of production and the potential use of such records in other proceedings. Family lawyers representing family members targeted by domestic violence may wish to consult the Crown and, potentially, depending on the circumstances of the case, the client's child protection lawyer, regarding the use of the victim's health records in the other proceedings. Similarly, family lawyers representing alleged perpetrators may wish to consult with the client's criminal defence and child protection lawyer in connection with the use of the accused's medical and mental health records in other proceedings. Production of Medical and Mental Health Records: Child Protection

In child protection cases, production of parents' medical and mental health records is often authorized by statute and ordered by the court.

The paramount best interests of the child concerns associated with parental health records (for example, records associated with parental drug and alcohol misuse, medical and mental health history, counselling records associated with domestic violence treatment [victims] or intervention [perpetrators]) will often prevail over privacy interests in child protection cases. See, for example: the Nova Scotia (Minister of Community Services) v. B.L.C., (2007), 254 N.S.R. (2d) 52, (2007), 282 D.L.R. (4th) 725, (2007), 37 R.F.L. (6th) 326, 2007 NSCA 45 (CanLII).

Yet, one of the documented reasons for the failure of victims of domestic violence to divulge information in family law cases or to cooperate in criminal processes is the fear that the information could be used against the targeted parent in child protection proceedings. Given the broad disclosure requirements in child protection cases, and the potential for use of records in the criminal or in family law case as well as in the child protection case, it is important that family lawyers (separate lawyers for each parent since the parents should be considered adverse in interest in a domestic violence context) establish strong working relationships with child protection authorities, and with the Crown or criminal defense lawyers in order to protect the privacy interests of clients and to protect against the inappropriate use of such records in other proceedings.

8.12 Responding to Applications from Criminal Defense Lawyers to Produce the Civil Litigation File

Refer to the principles in R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445. The accused, charged criminally with sexual offences, sought production of the complainant's civil litigation file. The civil litigation file was connected to a claim for damages associated with the same sexual offences. The appeal was allowed and the order for production was set aside. The court does note, however, that while solicitor-client privilege is a matter of fundamental importance, it is not absolute and may yield, in some cases, to enabling an accused to make full answer and defense. Nonetheless the case imposes a stringent 'innocence at stake' test: