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

Part 9: Hearings, Cross-sector Evidence Issues

9.1 Evidence from Prior Judicial Proceedings

See: British Columbia (Attorney General) v. Malik, 2011 SCC 18:

"A judgment of a prior civil or criminal case is admissible, if considered relevant, as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. The weight to be given to the earlier decision will rest not only on the identity of the participants, the similarity of the issues, the nature of the earlier proceedings and the opportunity given to the prejudiced party to contest but on all the varying circumstances of the particular case."

The case states that admissibility is distinct from the issue of whether the prior decision will be conclusive and binding, since the prejudiced party is given an opportunity to lead evidence to contradict the earlier finding - unless precluded by doctrines of res judicata, issue estoppel, or abuse of process. As a matter of public policy, the case endorses a "strong public interest in avoidance of multiplicity of proceedings" test.

For discussion of application of these principles in family and child protection cases, see: Wong v. Giannacopoulos, 2011 ABCA 277 (in connection with a vexatious litigant ruling); Delichte v. Rogers, 2011 MBCA 50; J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 27; J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 55; L.D. v. Children's Aid Society of Cape Breton-Victoria, 2010 NSCA 64; BL v. Saskatchewan (Social Services), 2012 SKCA 38.

Indeed, in connection with child protection matters, Ontario's child protection statute, Child and Family Services Act, RSO 1990, c C.11, section 50(1)(b) refers explicitly to the admission of "the reasons for a decision in an earlier civil or criminal proceeding" while other child protection statutes, for example, Newfoundland/Labrador's statute (Children and Youth Care and Protection Act, SNL 2010, c C-12.2) refer to a "finding in an earlier civil or criminal proceeding."

J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 55 extends British Columbia (Attorney General) v. Malik principles to the admission and use of prior court findings and rulings in a family law context in the absence of express statutory authority.

For discussion of admission and use of police records, see: BL v. Saskatchewan (Social Services), 2012 SKCA 38 and W.N. v. C.G., 2012 BCCA 149.

9.2 When a Perpetrator Challenges a Prior Conviction or Guilty Plea in a Family Law Context

Non-acceptance of responsibility is characteristic of many perpetrators of coercive domestic violence; denials of criminal responsibility (despite criminal convictions) are to be expected.

Family lawyers will wish to keep in mind that proof that a party pleaded guilty or was convicted of a criminal office is prima facie proof of the criminal act, subject to potential rebuttal (in some limited circumstances).Footnote 143

The cases state that the onus is on the person seeking to introduce rebuttal evidence to establish that re-examination will not constitute an abuse of process. Nonetheless rebuttal evidence has been allowed by courts in limited circumstances, for example: where the first proceeding was tainted by fraud or dishonesty, where fresh evidence not previously available calls into question the conviction, where the facts that gave rise to the civil action are not sufficiently similar to the facts that gave rise to the criminal conviction, or where fairness dictates the original result should not be binding in a new context. Courts have not allowed rebuttal evidence that is in essence a re-litigation of the criminal case in family court on the basis that it constitutes abuse of process.

Pertinent case law:

  • British Columbia (Attorney General) v. Malik, 2011 SCC 18
  • F., K. (Litigation guardian of) v. White (2001), 53 O.R. (3d) 391, (2001), 541 D.L.R. (4th) 198, (2001), 142 O.A.C. 116, 2001 CanLII 24020 (ON C.A.)
  • Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, (2003), 68 O.R. (3d) 799, (2003), 232 D.L.R. (4th) 385, (2003), 17 C.R. (6th) 276, (2003), 9 Admin. L.R. (4e) 161, (2003), 9 Admin. L.R. (4th) 161, (2003), 179 O.A.C. 291
  • R. v. Mahalingan, 2008 SCC 63 (CanLII), 300 D.L.R. (4th) 1, 237 C.C.C. (3d) 417, 61 C.R. (6th) 207. 243 O.A.C. 252
  • Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149, (2003), 232 D.L.R. (4th) 443, (2003), 9 Admin. L.R. (4th) 263, (2003), 179 O.A.C. 201, 2003 SCC 64
  • Polgrain Estate v. The Toronto East General Hospital, 90 O.R. (3d) 630, 293 D.L.R. (4th) 266, 60 C.R. (6th) 67, 238 O.A.C. 1, 2008 ONCA 427 (CanLII)
  • W.H. v. H.C.A. (2006), 82 O.R. (3d) 215, (2006), 272 D.L.R. (4th) 621, (2006), 219 O.A.C. 73, 2006 CanLII 27865 (ON C.A.)

9.3 Can Incidents of Domestic Violence be Considered by a Family or Child Protection Court Despite a 'Not Guilty' Finding?

There are many reasons a Crown prosecutor may not be able to prove a criminal charge beyond a reasonable doubt. For example, evidence may have been ruled inadmissible on technical grounds or the targeted person or child may not have cooperated or may have recanted the criminal complaint, for example, as a result of promises of change, fear, intimidation or manipulation. Thus, despite a not guilty finding in a criminal court, evidence of domestic violence can be considered in a family or child protection case. In Penner v. Niagra (Regional Police Services Board), 2013 SCC 19 the majority of the Supreme Court of Canada held that issue estopple would not bar a subsequent civil action against police officers, despite a dismissal of the complaint against them in a disciplinary proceeding, because the standards of proof and purposes of the two proceedings differed. Since the onus of proof and the application of evidence rules differ in criminal and civil contexts, a not guilty finding in a criminal court is not a reliable indicator in a family law or a child protection context that the domestic violence did not occur.

9.4 When a 'Victim' Attempts to Refute a Criminal Conviction

Researchers are reporting that 'victims' of domestic violence are being charged, prosecuted and convicted for criminal acts of resistance violence that do not technically qualify, in criminal law, as self-defence. Unless the targeted adult can establish grounds to admit rebuttal evidence (part 9.2 above), the criminal conviction or guilty plea can preclude denial of responsibility for the particular criminal act. Family and child protection lawyers will recall, however, that there is no crime of coercive domestic violence in the Canadian Criminal Code. The Code does prohibit individual criminal actions, some of which are associated with domestic violence (such as assault). Yet, as set out in Part 5 above, coercive domestic violence can only be fully understood as a pattern and a cumulative process; domestic violence is seldom a single criminal act.

As discussed earlier (in Part 5 above), it is not uncommon for those subjected to coercive domestic violence to react with an act of violence (resistance violence). Presumably, therefore, it is open to the party subjected to a pattern of coercive domestic violence to demonstrate, in a family custody/access or child protection case, the criminal act of violence occurred as a reaction to having been subjected, on other occasions, to a pattern of coercive domestic violence.

For an example of informative judicial reasoning on this issue in T.H. v. R.H., 2011 ONSC 6411 (CanLII).

9.5 Interpreting a Victim Recant in a Criminal Case in a Family Law Context

9.5.1 The Recant Problem: Introduction

Rates of victim recant are extremely high in criminal domestic violence cases. Former S.C.C. justice L'Heureux-Dubé recognized this issue almost two decades ago in R. v. Marquard, 1993 CanLII 37 (S.C.C.), [1993] 4 S.C.R. 223, (1993), 108 D.L.R. (4th) 47, (1993), 25 C.R. (4th) 1:

"it is information which can be compared to such well-recognized phenomena among victims of sexual abuse or domestic violence as recantation of the reported assaults and delay in reporting which also, if weighed without knowledge of the particular context in which they occur, reflect negatively on the credibility of the witness."

The reasons are well documented.Footnote 144 Although additional research on the issue is warranted, it seems likely that many 'victim' recants in criminal domestic violence cases are false.

Canadian criminal and civil protection courts are responding, in appropriate cases, with the admission and evidentiary use of prior inconsistent statements made to police in accordance with the principles set out in R. v B. (K.G.), [1993] 1 S.C.R. 740 and subsequent cases. R. v. Ord, 2012 NSCA 115, leave to appeal dismissed without costs in Jason John Ord v. Her Majesty the Queen, 2013 CanLII 22323 (SCC), expands these principles in a domestic violence context. Such statements are commonly called K.G.B. Statements. In connection specifically with the domestic violence context and the high rate of 'victim'/complainant recant in these cases, courts are conducting careful comparative analysis of similarities and differences between the content of KGB statements and other evidence, in an effort to: 1) distinguish true from false claims and 2) to prevent the success of false 'victim'/witness recant. For examples, see:

  • R. v. Ord, 2012 NSCA 115
  • R. v. Bishop, 2011 NSPC 95
  • Park v. St. Jules, 2011 ABQB 86
  • R. v. S.C.R., 2012 BCPC 122
  • Kla v. R., 2008 NBCA 30
  • R. v. Bishop, 2011 NSPC 95
  • R. v. Sasakamoose, 2008 SKPC 164
  • Borutski v. Borutski, 2011 ONSC 7099

Outside of courts, researchers are documenting a disheartening pattern of obstruction of justice via witness tampering in domestic violence cases.Footnote 145 Nonetheless scarce criminal justice attention has been devoted to this issue. Offenders are seldom investigated or charged,Footnote 146 despite the obstruction of justice provisions in section 139 of the Criminal Code. For examples of exceptions (domestic violence cases in which offenders have been charged and convicted for obstruction of justice), see: R. v. Crazyboy, 2011 ABPC 380 and the successful appeal of the sentence by the Crown in R. v. Crazyboy, 2012 ABCA 228; R. v. Zimmerman, 2010 ABPC 228; R. v. Jones, 2006 BCPC 278; R. v. S.C.R., 2012 BCPC 122; R. v. Desjarlais, 2009 MBPC 45; R. v. J.R.S, 2010 SKQB 33.

The degree of intimacy between offenders and 'victims' in domestic violence cases increases the likelihood of contact (direct and indirect) between the complainant and accused before trial, particularly when the complainant and alleged perpetrator have children in common. Obviously repetitive contact between accused and complainants or between accused and the complainant's children prior to the criminal trial elevates the risk that contact will be used to attempt to dissuade the complainant from testifying. Failure to offer protection, to investigate and to charge when obstruction of justice occurs results in:

  • Rewarding offenders for breaches of section 139 of the Criminal Code
  • Blaming the 'victims', instead of offenders, for the high collapse rates in criminal domestic violence cases

Four research studies, two in the United States, one in United Kingdom, and a small study in Canada shed light on why 'victims' recant, even in dangerous, high-risk cases. The first involved analysis of tape-recorded telephone calls of alleged perpetrators who were being held in jail pending trial in serious domestic violence felony cases in Milwaukee. The study disclosed severe levels of harassment, intimidation, and manipulation of 'victim' witnesses, from jail, in the vast majority of the felony cases. More recently, another telephone study also in the United States in 2011Footnote 147 (expanded to include less serious domestic violence charges) documented a pattern of manipulative interaction between alleged perpetrators and complainants resulting in complainants ultimately agreeing to retract domestic violence claims in favor of testifying for the accused. Similar results are reported in the Canadian and United Kingdom studies.Footnote 148

9.5.2 The Recant Problem: Potential Solutions

Close monitoring of interim release provisions and no contact orders, with careful attention to the circumstances surrounding accused-complainant contact, particularly in circumstances suggesting possible breaches of section 139(2) of the Criminal Code, would do much to discourage these practices. Documented suspicious circumstances include:

  • An established pattern of withdrawn domestic violence charges, particularly when withdrawn charges and/or not guilty findings are the result of complainants' lack of cooperation and circumstances indicate the likelihood of a pattern of domestic violence. The Alberta Court of Appeal endorsed crown arguments relating to suspicious circumstances surrounding a 'victim' recant - a prior pattern of recants with the recants themselves recanted - in R. v. L.G.P., 2009 ABCA 1.Footnote 149
  • A dramatic change in willingness to cooperate following contact or communication with the accused (direct or indirect, for example, via the children, friends, family of the accused, or the defense lawyer in the absence of a lawyer or domestic violence advocate for the complainant).Footnote 1250

The Vera Study recommends a number of best practices to reduce 'victim' recant, including Crown monitoring and seeking explanations for changes in the stories 'victims' tell, while exploring the circumstances surrounding the changing story, and police and Crown teaching 'victims' how to collect evidence documenting breaches of no contact orders.Footnote 151

In a family law context, when interpreting a 'victim' recant in a criminal case, one should resist the assumption that a criminal recant necessarily demonstrates that the 'victim' was not telling the truth about the violence in the original statements made to police. Informed conclusions about validity or lack of validity of original claims can only be made after considering all of the evidence and surrounding circumstances, including the degree to which the evidence is consistent or inconsistent with the particulars of each statement, and after examining the circumstances surrounding the recant, including full particulars of any direct or indirect contact between the 'victim' and the accused.

9.6 Evidence Rules in Family & Criminal Contexts: Past Conduct

While basic rules of evidence apply in family (custody and access and child protection) as well as in criminal cases, rules relating to the admission and use of information in a criminal context tend to be more restrictive than in a family law context. This means that evidence that could not be considered in a criminal law context may admissible in a family law and child protection context.

For example, in a criminal case, evidence of past acts of domestic violence and past parental conduct may or may not be admissible, depending on whether or not it is admissible as similar fact evidence or under another evidence rule. The reason admission and use of such information is restricted in a criminal context is that such evidence is often presented as 'propensity evidence', i.e. it is offered to 'prove' it likely that the accused person is the sort of person who would commit the criminal act. The potential for injustice is obvious.

In a family law and child protection context such evidence is presented for an entirely different purpose. The aim is not to find a party responsible and accountable for the commission of a particular criminal act. The focus, instead, is on safety and child best interests. In such a context the evidence loses most of the qualities of propensity evidence. As a general rule (with some exceptions pertinent to specific child protection and family law contexts)Footnote 152 information and evidence pertinent to safety and to the best interests of children will usually be admitted in family law cases. As we have seen, in a family law context, complete evidence of past patterns of domestic violence enables accurate assessment of risk and safety, of civil liability, of support issues, of parenting issues, of the best interests of the child and of child protection issues.

Numerous provincial and federal family law and civil statutes require consideration of the patterns of domestic violence when deciding child protection or child custody and access matters. Nonetheless family and child protection courts continue to consider the admissibility of such evidence since trial judges have discretion to exclude relevant evidence when the prejudicial impact outweighs the probative value "even where the admissibility of evidence is provided for by statute". Thus, when admissibility of prior domestic violence conduct is contested, family and child protection courts may engage in a weighing of prejudicial and probative value

The starting point – during voir dire when admissibility is contested – is that, generally speaking, rules of evidence apply in family (custody/access and child protection) cases as well as in criminal cases. See, for example: C.L.M. v. D.G.W., 2004 ABCA 112. In family law cases "suitability for parenting" is central to determination of the best interests of the child.

Because domestic violence in current and past relationships, and prior violence in general, have direct relevance to the other partner's safety, to "suitability for parenting," and to child best interests as well as, in the child protection context, to whether or not the child is in need of intervention services or protection, relevance and probative value will usually be high in family law cases (custody and access as well as in child protection). Finally, courts will assess whether or not the potential prejudice of such evidence overcomes relevance and probative value.

9.6.1 Past Conduct (Family and Child Protection): Prior Violence, Past Parenting

In C.L.M. v. D.G.W., [2004] 346 A.R. 381, (2004), 2 R.F.L. (6th) 75, 2004 ABCA 112, the Court of Appeal of Alberta considered a trial judge's decision to strike affidavits of a mother, the mother's mother and two sisters as well as an older daughter. The father was seeking unsupervised access to three daughters. The trial judge struck information in the affidavits relating to the father's past sexual deviancy and use of pornography on the basis that such evidence was scandalous, irrelevant, and prejudicial. The Court of Appeal disagreed, ruling that evidence about his previous sexual behaviour, his admitted sexual propensity, and the potential harmful effects on the children while in his unsupervised presence were all relevant to, and highly probative of, the type of access to be granted. See also W.N. v. C.G., 2012 BCCA 149 in connection with alcohol and drug use and violent behavior not witnessed by the child.

Unlike the situation in the criminal context, if the disputed evidence is relevant and probative to determining what is in a child's best interest, its prejudicial effect on a parent will rarely be sufficient to exclude it.

Similarly, in R.C.M.S. v. G.M.K. (2005), 266 Sask. R. 31, 2005 SKQB 296, a case that included a pattern of domestic violence against the mother, the father objected to testimony from a former intimate partner about his emotional and physical abuse of her during a prior intimate relationship. Justice Ryan-Froslie comments, in support of the decision to admit the evidence, that while rules of evidence apply, their application is less rigid in civil than in criminal matters. In connection specifically with evidence of acts of domestic violence against the non-party, the evidence was admitted in connection with the father's ability to act as a parent and in connection with assessment of the best interest of the children.

All child protection statutes in Canada authorize court intervention if children are being neglected or emotionally harmed by the behaviour of a parent. Thus evidence relating to the past pattern of domestic violence of either parent is admitted regularly throughout Canada. See D. A. Rollie Thompson (2003)for discussion of evidence rulings on this and other issues in family law and child protection contexts.Footnote 153

As a result, family law and child protection courts may consider considerable extensive evidence relating to past conduct that may not be available to a criminal court. This is yet another reason why decisions about contact with children are best left with family courts and/or child protection authorities.

9.6.2 Past Conduct (Family and Child Protection): Mutual Violence and Self Defense

Not surprisingly, it is fairly common in family and child protection cases (and presumably in criminal cases) for perpetrators to claim that the violence was minor and isolated, that the other partner was the instigator of the violence, that their own violence was defensive, or that the violence was mutual or accidental. Prior domestic violence conduct evidence can be admitted in such circumstances to refute such claims. Consequently, family lawyers representing the targeted party should consider ensuring that the crown prosecutor in the criminal case is aware of any patterns of prior abuse and violence.

9.6.3 Past Conduct: Concluding Comment

In sum, family and child protection courts will usually have access to considerably more information about the nature and pattern of domestic violence than can be made available to a criminal court. In addition, because the onus is different in criminal and family courts, such that proof in a criminal court must be beyond reasonable doubt while proof in a family and child protection court is on balance of probabilities, a not-guilty finding in a criminal court should not preclude consideration of domestic violence evidence in a family law context.

9.7 Good Character Evidence

Custody and access as well as child protection cases differ from criminal cases in that personal characteristics associated with parenting are a central concern. Nonetheless evidence of good public reputation carries less weight in some circumstances than in others. For example, in a domestic violence context, social science research establishes that alleged perpetrator's calm, non-threatening public behaviour may have little resemblance to private behaviour. The Ontario Court of Appeal explicitly recognized this issue in a criminal context in R. v. Minuskin (2003), 68 O.R. (3d) 577, (2003), 181 C.C.C. (3d) 542, (2003), 180 O.A.C. 255, 2003 CanLII 11604 (ON C.A.) whereby the court recognized that domestic violence is "often committed by persons of otherwise good character and judgement".

9.8 Victim /Witness Demeanour

Family, child protection and criminal (Crown and defense) lawyers will all want to keep in mind the need for caution when interpreting the demeanour of those who claim to be 'victims' in domestic violence cases. As discussed in part 4.2, domestic violence can produce exaggerated startle and defense responses that resemble anger, hostility and aggression.

When witnesses have been subjected to severe or patterned domestic violence, such patterns in testimony and demeanour can be expected. Demeanour is particularly unreliable in domestic violence cases.

9.9 Evidence of Children

See part 4.6 above: Eliciting information from children.

If a child must offer direct testimony, explore potential options for the child's comfort and protection such as:

  • Ensuring that the child has pre-trial exposure to court surroundings. A number of jurisdictions have developed online services to help children understand court processes
  • Seeking age appropriate breaks
  • Preventing cross-examination of the child by a party (as opposed to the party's lawyer)
  • Allowing the child to testify behind a screen or from another room via video link
  • Allowing a support person to sit near the child. (A number of American jurisdictions are reporting use of trained courthouse dogs to provide emotional support and feelings of safety to children during testimony.)
  • Making use of testimonial aides. Canadian courts are affirming the constitutional validity of testimonial aides for child witnesses: R. v. J.Z.S., 2010 SCC 1. Note that while such options reduce opportunities for intimidation while the child is testifying, they do not prevent potential harm to parent-child relationships as a result of testifying against a parent
  • Preventing age-inappropriate questioning
  • Limiting use of repeat questioningFootnote 154

For additional information, see:

  • Articles by Nicholas Bala et al., on child witnesses and child witness testimony, for example, Nicholas Bala et al. (2010) "The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform" International Journal of Children's Rights 18, 53-77
  • New York State Permanent Judicial Commission on Justice for Children (2008) Tools for Engaging Children in Their Court Proceedings
  • AIJA Committee on 'Children Giving Evidence' (2012) Bench Book For Children Giving Evidence in Australian Courts, Updated December, 2012 (Australian Institute of Judicial Administration)

9.10 Polygraph Evidence

Family lawyers will sometimes be asked by clients to introduce polygraph evidence in support of denials of domestic violence or child abuse. In the criminal context, the Supreme Court of Canada has ruled repeatedly that polygraph evidence is inadmissible because it is unreliable, is a form of oath enhancement and the bolstering of credibility, is hearsay, and is good character evidence.

In the family and child protection context, however, trial decisions on admission are inconsistent. Few appellate courts have ruled directly on the use of polygraph evidence in family law cases. With this caveat in mind, generally, courts have been concluding that: evidence of willingness to take a polygraph test is relevant and admissible but no firm conclusions may be drawn from a refusal to take a polygraph.

Many cases mention (usually without explanatory comment) testimony from a party that he or she took and passed a polygraph test but most of the judgements do not mention expert testimony introducing the test results.

British Columbia (Director, Child, Family and Community Services) v. D.M.G., 2007 BCCA 415, is one of the few appellate decisions on the admissibility of polygraph evidence in a family law context. The parents in this case sought to appeal on the basis in part that the trial judge had not allowed them to introduce information about polygraph tests conducted with four caregivers that might have helped them refute claims of inadequate protection for the child. In denying leave to appeal, Justice Hall endorsed the decision of the trial judge, who adopted the reasoning in R. v. Béland, 1987 CanLII 27 (S.C.C.), [1987] 2 S.C.R. 398, 36 C.C.C. (3d) 48, and in E.W. v. D.W., 2005 BCSC 890, 50 B.C.L.R. (4th) 345, in refusing to admit polygraph evidence on the ground that it did not meet reliability requirements set out in the statute. See also: L.D. v. Children's Aid Society of Cape Breton-Victoria, 2010 NSCA 20 (CanLII). On the other hand, in Carrier v. Tate, 2009 BCCA 183, the appellate court endorsed the trial court's acceptance of expert testimony, including the assertion that, in his experience, willingness to take a polygraph is an indicator that the person is less likely to have committed the act. The judge had been careful, however, to indicate that willingness to take a polygraph was not proof of innocence. See also K.M.W. v. L.J.W., 2010 BCCA 572 (CanLII).

Family lawyers may wish to keep in mind that polygraph tests are based on out-of-court behaviour and offends hearsay rules since the person taking a polygraph test usually has no direct knowledge of how to interpret test results and is informed of test results by the test administrator.

While concerns about reliability suggest that it might be best for family courts to follow the approach taken in criminal courts on admissibility and use of polygraph evidence, the cases as a whole are indicating that judges are more receptive to receipt of the evidence in family and child protection than in criminal cases.

9.11 Audio and Visual Recordings

9.11.1 Introduction

Court practices with respect to admissibility of recordings in a family law context are inconsistent. In practice, audio and visual recordings and transcripts of conversations between the parties or between the parties and their children are being admitted and considered.Footnote 155 On occasion recordings have even been admitted even when illegally obtained.Footnote 156 Nonetheless admission is controversial. A number of courts have disallowed such evidence, objecting strongly to privacy issues and the covert nature of the evidence.Footnote 157 Indeed the Ontario Court of Appeal endorses, at paragraph 12, of Sordi v. Sordi, 2011 ONCA 665 a "sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings".

9.11.2 Recordings: Domestic Violence Context

See part 5.8 above in connection with cell phone texting messages, emails, and the contents of computers.

In a domestic violence context, a perpetrator's attempts to introduce covert audio or video recordings can actually constitute evidence of continuing monitoring, stalking or surveillance of the targeted parent, or of attempting to 'set up' the targeted parent as a litigation tactic. In such circumstances, family lawyers opposing introduction of tapes, may wish to contact police in connection with a potential criminal investigation (e.g. an invasion of privacy offence).

On the other hand, audio or visual recordings can be document evidence of continuing domestic violence or deficient parenting (for example when the recording demonstrates denigration of the other parent to a child). Subject to the qualifying comments below, such recordings can also assist in assessment of credibility.

One must consider the aspect of control of content. The person making the recordings, unlike the person recorded, has control over matters such as: timing of the recording, surrounding circumstances at the time of the recording, his or her own responses, and the choice of what to include and what to exclude. Thus in Borstein v. Borstein, 2002 BCSC 479, Justice Ralph refused to assign any weight to a tape recording, noting that the father was in a position of control when he made the recording. See also: Zinyama-Mubili v. Mubili, 2010 ONSC 3928 (CanLII) at paragraph 26; F.J.N. v. J.L.N. (2004), 9 R.F.L. (6th) 446, 2004 CanLII 6247 (ON S.C.); Norland v. Norland, 2007 CanLII 20786 (ON S.C.); L.N. v. D.E.N., 2006 CanLII 42602 (ON S.C.).

Nonetheless in the particular circumstances of L.S. v. Alberta (Child Youth and Family Enhancement Act, Director), 446 A.R. 135, 2009 ABCA 10 (CanLII) the Court of Appeal of Alberta affirmed the trial judge's decision to admit and give considerable weight to video evidence despite concerns that the video might have been edited by the parent introducing the evidence. Despite this issue, the court had serious concerns about depictions of sexually inappropriate behaviour on the part of the mother in the presence of the children.

Evidence relating to the circumstances surrounding the recording is particularly important in domestic violence cases in order to identify cases in which a violator purposely provoked the other parent immediately prior to the recording or doctored the evidence. See, for example, M.(L.V.J.) v M.(D.L.), 2005 BCSC 995 at paragraph 126 to 127.

Some courts are imposing qualifications on admissibility in addition to relevance and probative value, such as proof of authenticity and lack of alteration, introduction of the complete recording, and voice identification: D.(W.L.) v. D.(R.C.), 1999 SKQB 178 at paragraphs 14 to 20. But see also L.S. v. Alberta (Child Youth and Family Enhancement Act, Director), 446 A.R. 135, 2009 ABCA 10 (CanLII).

Subject to the cautionary comments above in connection with violator stalking and surveillance and scrutiny of surrounding circumstances, evidence from audio or visual recordings of exchanges between parents or between parents and children can, on occasion, provide valuable evidence about issues such as parental manipulation of a child, parental undermining of the other parent, harmful parenting practices, continuing intimidation, stalking, threats or monitoring. For examples, see: Caparelli v. Caparelli, 2009 CanLII 73655 (ON S.C.); Re I.S., 2007 ABPC 2; L.S. v. Alberta (Child, Youth and Family Enhancement Act, Director, 2009 ABCA 10. Video recordings can also document the extent to which the children have been harmed by domestic violence. For example, see Judge N. Flatters' careful analysis of a video tape evidence in Re I.S., 2007 ABPC 2 (CanLII).

9.11.3 Audio and Visual Recordings: Family to Criminal Context

Family lawyers representing clients who seek to admit or who seek to oppose admission of recordings will also wish to keep in mind the potential implications of such evidence in a criminal law context. Consider whether or not such evidence could have the potential to become evidence of criminal harassment pursuant to section 264 of the Criminal Code or evidence of unauthorized interception of private communications pursuant to section 184 of the Code.

9.12 Strangulation (Attempted)

Family lawyers responding to not-guilty findings in criminal domestic violence cases, where the criminal charges related to attempted strangulation, may wish to keep in mind (and if necessary present to the family court) information pertinent to medical signs of strangulation.

Strangulation is a common method of intimate-partner homicide (along with shooting and stabbing). Prior attempted strangulation is strongly associated with the potential for future lethal outcome (see Part 7 above). Medical research informs us that 'victims' can die from strangulation without the presence of a single physical mark. External physical signs become visible in only about 50% of strangulation cases. Moreover, physical signs of strangulation can take many hours to appear. Finally, death from strangulation may ensue after a delay of days or even weeks.Footnote 158

Family lawyers representing clients who claim to have been subjected to strangulation attempts but whose abuser was found not guilty in a criminal court may wish to keep these issues in mind when presenting information related to the attempted strangulation to the family court, particularly when the accused, in the criminal case, was found not guilty because the Crown failed to present medical evidence or a witness testified that there were no physical signs or marks on the client's neck after the alleged strangulation attempt. Expert medical testimony is advisable.

9.13 Avoidance of Conflicting Agreements and Orders: Reminder

Crown, defense, child protection and family law lawyers can prevent conflicting agreements and orders by ensuring the exchange of agreements and orders across legal systems, by ensuring that provisions in agreements and orders in each legal system are consistent with provisions in agreements and orders in other legal systems, and by ensuring that orders and agreements in each sector take into account how provisions in orders and agreements could affect the clients in legal proceedings in the other sectors.

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