Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Annex 2: Overview of justice system processes in family violence cases
This Annex provides an overview of the criminal (including youth) justice system, the child protection system, the family justice system and the process for obtaining civil protection orders.
2.1 The criminal justice system
Generally, references to the criminal justice system encompass the four independent institutions of the police, prosecutions, the criminal courts, and corrections,Footnote 37 which together apply the criminal law. The Supreme Court of Canada has held that the objective of the criminal law is to maintain a just, peaceful and safe society.Footnote 38 Such a society results when individuals feel that the state is protecting both their physical selves and their property at the same time as it is upholding their fundamental rights.
The criminal justice system is public in nature, and a crime is seen to be committed not solely against an individual, but against society or the state as a whole. A crime is thus prosecuted on behalf of the state. The Supreme Court has stated that:
… the ultimate purpose of criminal proceedings is to convict those found guilty beyond a reasonable doubt. Our system of criminal justice is based on the punishment of conduct that is contrary to the fundamental values of society, as statutorily enshrined in the Criminal Code and similar statutes.Footnote 39
An individual who is accused of a criminal offence faces a potential deprivation of their liberty, a criminal record and the negative stigma associated with a criminal conviction should they be found guilty of the offence. Consequently, accused persons benefit from a range of Charter protectionsFootnote 40 which have a significant influence on the conduct of criminal investigations, proceedings and rules of evidence.
Responsibility for criminal law and criminal justice matters in Canada is divided between the federal and provincial/territorial governments. The Parliament of Canada is responsible for the criminal law, including the Criminal Code,Footnote 41 while responsibility for the administration of justice, including enforcement and prosecution of the criminal law, is primarily a matter of provincial/territorial jurisdiction.Footnote 42
The Criminal Code does not have a specific offence for family violence. Rather, a person alleged to have committed violence may be charged with any number of offences depending on the circumstances.
Upon receiving information that a crime may have been committed or is in the process of being committed, the police will begin a criminal investigation into the matter. The next step will be to assess the evidence gathered and determine whether there are reasonable grounds to believe that an offence has been committed and whether a charge can be laid. Any person can lay an information before a justice of the peace declaring that he or she has reasonable grounds to believe that an offence has been committed by the person subject to the charges (section 504). However, generally speaking, most often the information is laid by police (in some jurisdictions, a prosecutor is responsible for pre-approving the laying of the chargeFootnote 43). Once an information is endorsed by the Justice, the suspect becomes an accused charged with a criminal offence. At that point, the Justice decides whether to issue a summons or a warrant (section 507). Once a charge is laid, this indicates that the police have reasonable grounds to believe the person committed the offence, and it does commence the prosecution. The investigation, however, may very well continue, particularly if new information comes to light.
As noted in Chapter 3, Volume I, in response to concerns that spousal assaults were being treated as “private” matters and not processed with the same rigor as stranger assaults by some police and prosecutors, specific spousal abuse policies were introduced in all jurisdictions in Canada by the mid 1980’s. Although the pro-charge policiesFootnote 44 differ among jurisdictions, they generally indicate that a charge should be laid where there are reasonable grounds to believe that an offence has been committed and, in jurisdictions with Crown pre-charge screening,Footnote 45 it is in the public interest to lay a charge.Footnote 46 The overall goal of the policies is to encourage reporting of spousal offences, to send a strong message that spousal assault is a crime, to offer protection and assistance to victims and ultimately to reduce the incidence of spousal violence.
If a charge is not proceeded with, the police will consider whether a section 810 recognizance is appropriate (see 2.1.2 below). Once a charge has been laid, the police then provide the evidence to the Crown. Crown prosecutors are not counsel for victims or the police. In every case, they are required to act independently, with fairness, be consistent, objective, impartial, and seek to avoid all conflicts of interest that might undermine independence. Prosecutors must serve the general public’s interest, and seek to uphold the rule of law, and the integrity of the criminal justice system. Their duty is to ensure that a just verdict is reached at the end of the trial process and not strive for a conviction at all costs. In filling this role, the prosecutor must determine if the charge will proceed.Footnote 47 The first consideration in commencing or continuing a prosecution is the sufficiency of the evidence. A prosecution may only be commenced or continued if – and as long as – there is a reasonable likelihood of conviction when the known evidence as a whole is considered. If the evidence justifies the commencement or continuation of the proceedings, the Crown prosecutor should then consider whether the public interest requires a prosecution. Crown prosecutors must carefully balance the factors that favour a prosecution against the factors against such proceedings. Most jurisdictions will have a list of possible factors to consider which include: seriousness of the offence, harm to the victim and circumstances of the accused.
Where the accused has been arrested by the police, he or she may be either released, with or without conditions, or held in custody until a bail hearing takes place to determine if judicial interim release is warranted. The compelling appearance and judicial interim release (“bail”) provisions of the Criminal Code provide peace officers and judges with a wide range of powers to release or detain an accused person. Generally speaking however, an accused has the right not to be denied reasonable bail without just cause,Footnote 48 and peace officers or Crown prosecutors must justify why increasingly intrusive conditions, up to the point of detention are required.Footnote 49
Currently, police officers can release an accused person and compel their attendance in court through various different forms of release (appearance notice, promise to appear, recognizance, undertaking, etc.). The form of release used is contingent on various circumstances: if the accused was arrested;Footnote 50 if the arrest is with or without a warrant; if the offence falls within a certain class of offences; and if the person authorizing the release is an “officer in charge” or an “arresting officer”.
An appearance notice and a promise to appear are similar to a summons, in both form and function.Footnote 51 They are release documents issued by the peace officer or the officer in charge. The summons is a written command issued by a Justice of the Peace, directed to the accused to appear in court at a particular time to face certain charge. The recognizance, like the undertaking, requires an accused to follow certain conditions.Footnote 52
Form 11.1 of the Criminal Code sets out the conditions that may be placed on an individual by an officer or officer in charge, including conditions such as abstaining from:
- Communication, directly or indirectly, with a victim or other person (“no-contact” terms);
- Attending at certain specified locations, for example residence, place of employment, school (“no-go” terms);
- Possession of a firearm and to surrender firearms and any authorizations, licences, etc. to acquire or possess a firearm; and
- The consumption of alcohol, other intoxicating substances or drugs, except with prescription.
Where an accused person is arrested without a warrant, that person may, however, be detained where the arresting officer (section 497) or the officer in charge of the facility (section 498) believe that detention is required to:
- Establish the identity of the person;
- Secure or preserve evidence of or relating to the offence;
- Prevent the continuation or repetition of the offence or the commission of another offence; or
- Ensure the safety and security of any victim of or witness to the offence.
An officer may also detain a suspect where he or she has reason to believe that, if the person is released from custody, the person will fail to attend court.
At the first court appearance, the Crown prosecutor may consent to the accused’s release, with conditions, or oppose release.Footnote 53 Pursuant to section 515 of the Criminal Code, an accused will be released pending trial unless the prosecutor “shows cause” why the detention of the accused is necessary.Footnote 54 Section 515 also provides that the accused can be released with an undertaking (with or without conditions) or with a recognizance (with or without sureties). The Crown can seek an accused’s detention on one of three grounds:
- To ensure the accused’s attendance in court (“primary ground”);
- For the protection and safety of the public (“secondary ground”); or
- To maintain public confidence in the administration of justice (“tertiary ground”).
In situations of family violence, the secondary ground – protection of the safety of the public, and in particular that of the complainant, is of particular importance.Footnote 55
The Criminal Code categorizes offences based on the seriousness of the offence. Some offences are straight summary conviction offences others are straight indictable offences, however most are hybrid, whereby the Crown has an election as to whether to proceed by way of summary conviction or indictment. Unless the Criminal Code indicates otherwise, summary conviction offences are punishable either by a fine of not more than $5,000 or six months' imprisonment or both.Footnote 56 Several offences commonly used in the context of domestic violence are punishable by up to eighteen months if proceeded by way of summary conviction including assault causing bodily harm and uttering death threats. Indictable offences are generally considered more serious, carry lengthier maximum penalties and afford an accused person the right to a preliminary inquiry and jury trial.
Summary conviction offences are tried in provincial court and indictable offences may be tried in either superior or provincial court, depending on the nature of the offence and the mode of trial selected by the accused. Some offences, however, such as murder, fall under the exclusive jurisdiction of the superior court and a limited number of offences, listed at section 553 of the Criminal Code, may only be tried before a provincial court judge.
Since indictable offences involve greater potential repercussions for accused persons, greater procedural options are also available in these prosecutions. A preliminary inquiry may be held before the trial of an indictable offence to allow the parties to hear the evidence with respect to specific issues that have been identified in advance and to hear specified witnesses.Footnote 57 Normally, they are only held if the accused or the Crown request one.Footnote 58 At the end of the preliminary hearing, a trial date is set if the court is satisfied that there is sufficient evidence. Otherwise, the accused is discharged and the matter does not proceed further unless an appeal is undertaken or an indictment is preferred.
A judge may order a pre-trial hearing to consider matters that can be decided before the start of the proceedings in order to promote a fair and expeditious proceeding.Footnote 59 This is generally done on the request of the prosecutor or the accused but may also be ordered by the judge alone.
A major distinction between the family and criminal law systems is the burden of proof. In the criminal law system, the Crown must show that the evidence proves beyond a reasonable doubt that the accused is guilty of the charges. This high burden of proof is tied to the presumption of innocence.Footnote 60 In contrast, in the family law system, one side need only show that something has occurred based on a balance of probabilities. It is thus possible for a court in a family law matter to find that family violence has occurred on a balance of probabilities, yet for a criminal court to find on the same evidence that the offence in question has not been proven beyond a reasonable doubt.
Where the accused is found guilty, sentencing will occur. A victim may submit a victim impact statement to the court, which will be taken into consideration when the accused is sentenced. The Criminal Code states that the sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, and should accomplish one or more of the following objectives: denounce the criminal conduct; deter the offender and others; separate offenders from society when necessary; assist in rehabilitating the offender; provide reparation to the victim and the community; and give a sense of responsibility to the offender and acknowledgment of the harm done to victims and to the community.Footnote 61
In sentencing, the court is required to consider as aggravating factors whether the offender abused a position of trust or authority in relation to the victim; whether the victim was under 18 years of age and/or whether the victim was in a marital or common law relationship with the offender.Footnote 62 All of these factors may be relevant in the context of family violence.
Sentences may include imprisonment, an intermittent sentence, a conditional sentence, a fine, a suspended sentence, probation, a restitution order, certain other types of prohibitions or orders (e.g. firearms prohibitions, orders to provide a DNA sample) or discharge (conditional or absolute). Conditions such as no contact or communication with the victim directly or indirectly can be imposed as part of the sentence, typically as part of a probation order. While alternative measures or diversion programmes are available in some provinces in the context of spousal abuse cases, in most jurisdictions, these cases are exempt.
2.1.2 Criminal protection orders
The police and criminal courts are empowered to make orders pursuant to the Criminal Code that are meant to protect victims when charges relating to family violence have been laid. No-contact orders can be made during the interim release of the accused, pending trial or appeal, and as a condition of a probation or a conditional sentence order following conviction. Upon application by police and/or Crown prosecutors, the court can also issue an order under section 810 of the Code, which are preventative court orders requiring an individual to agree to specific conditions to keep the peace even if that person has not yet committed an offence or been arrested. These are known as peace bonds or recognizances. The criminal court also has a common law jurisdiction to be able to bind a person over to keep the peace.
2.1.3 The youth criminal justice system
While the body of this report does not describe in detail the specific challenges related to collaboration between the youth criminal justice system and family/child protection systems, there are significant differences between the processes in the adult and youth criminal justice systems. A brief description of the youth criminal justice system is provided here.
When a young person who is at least 12 but less than 18 years of age is alleged to have committed an offence under federal law, the Youth Criminal Justice ActFootnote 63 (YCJA) applies. While many aspects of criminal procedure are similar in the youth and adult criminal justice systems, the YCJA establishes distinct legal principles, protections and options for dealing with youth who are alleged to have committed a criminal offence.
The YCJA recognizes that the youth justice system must be separate from the adult system and is based on the principle of diminished moral blameworthiness of youth. It emphasizes rehabilitation and reintegration, fair and proportionate responses to offending, enhanced procedural protections for youth and timely interventions.
The YCJA recognizes that young persons have special guarantees of their rights and freedoms, and it contains a number of significant legal safeguards to ensure that young people are treated fairly and that their rights are fully protected. For example, as a general rule, the privacy of youth who are dealt with under the Act is protected through publication bans on their identity and restrictions on access to youth records. Young people also have enhanced rights to counsel, including state-provided counsel, and the right to have parents or other appropriate adults present throughout key stages of the investigative and judicial process.
Given that measures outside of the formal court process can often provide a more timely and effective response to youth offending, the YCJA encourages the use of extrajudicial measures in all cases in which they are adequate to hold a young person accountable. Section 4 of the Act states that extrajudicial measures are presumed to be adequate to hold a first-time, non-violent offender accountable and can be used even if a young person previously has been dealt with by extrajudicial measures or found guilty of an offence. Among other things, extrajudicial measures should be designed to encourage young persons to acknowledge and repair the harm caused to victims and encourage the involvement of families, victims and communities. The YCJA requires police officers to consider the use of extrajudicial measures before deciding to charge a young person, and police-reported statistics show that each year, more than 50% of “chargeable” youth cases are dealt with through means other than the laying of charges, such as through the use of warnings, cautions or referrals to community-based programs aimed at addressing the circumstances underlying offending behaviour.Footnote 64
If a young person is charged, all proceedings take place in youth court, which is most often a provincial court, and the majority of cases proceed summarily. While proceedings take place in open court, the YCJA prohibits publication of information that would identify a young person who is dealt with under the Act or a young victim or witness of an offence committed by or alleged to have been committed by a young person.Footnote 65
For the most part, the adult sentencing provisions set out in the Criminal Code do not apply to youth.Footnote 66 Instead, the YCJA contains a statement of purpose and principles of youth sentencing and establishes youth sentencing options. The Act requires that youth sentences be just sanctions that impose meaningful consequences for the young person and that promote their rehabilitation and reintegration into society. Sentences must be proportionate to the seriousness of the offence and the degree of responsibility of the young person. There are a broad range of community-based sentencing options and clear restrictions on the use of custodial sentences. In exceptional cases, a judge may decide to sentence a young person as an adult, in which case the adult sentencing provisions apply.
Before imposing a sentence, a judge may, and in some cases must, consider a pre-sentence report in respect of the young person. In addition, at any stage in the youth court proceedings, a judge may require that a medical, psychological or psychiatric report be prepared on the young person. A judge must also consider a victim impact statement if one has been filed with the court.
The YCJA encourages the use of youth justice conferences. A conference refers to a group of people who are asked by a decision maker under the Act, such as a judge, to come together to give advice on a particular case. Conferences can take many forms, such as a family group conference, a youth justice committee, a sentencing circle, or a professional case conference. Participants in these conferences can include the young person, his or her parents, the victim, community agencies, and professionals with a particular expertise related to the case. While they are not decision-making bodies, conferences can provide advice and recommendations to decision makers on a variety of issues, including appropriate extrajudicial measures, conditions for release from pre-trial detention, and sentencing options.
Finally, the YCJA makes it clear that while measures taken should reflect the needs and individual circumstances of youth and promote rehabilitation, the needs or social welfare problems of a young person should not result in a longer or more severe penalty than what is fair and proportionate to the seriousness of the offence committed. The Act also contains a number of provisions that emphasize that the criminal justice system is not to be used as a substitute for more appropriate non-criminal justice system measures. For example, sections 29(1) and 39(5) of the YCJA state that neither pre-trial detention nor sentenced custody shall be used as a substitute for appropriate child protection, mental health or other social measures. Section 35 states that a youth justice court may, at any stage of proceedings against a young person, refer the young person to a child protection agency for assessment to determine whether the young person is in need of child protection services.
As already noted, as a general rule, the YCJA protects the privacy of young persons who are accused or found guilty of a crime by keeping their identity and other personal information confidential. In addition to the publication ban on a youth’s identity, the YCJA establishes clear restrictions on access to youth records. It sets out who may access youth records, for what purposes, and for how long such records are to be accessible.
A record is anything that contains information created or kept for the purposes of the YCJA or for investigating an offence that could be prosecuted under the YCJA. For example, details about an arrest, charge or sentence, and information about the young person and/or an offence provided by family members, neighbours, school authorities and victims may form part of a youth record.
While the YCJA allows for the sharing of youth records in certain circumstances without a court order, in many cases access to records is allowed only if an order is made by a youth justice court judge. In addition, once an individual is given access to a youth record, further sharing of the information contained within that record is restricted by the YCJA.
2.2 The family justice system
The family justice or law system regulates the rights and responsibilities of family members upon the breakdown of the family unit. In particular, the family law system deals with matters of separation, divorce, parenting arrangements for children, child and spousal support, and the division of family property and possession of the family home.Footnote 67
In comparison to criminal law and child protection proceedings, family law involves the resolution of disputes between private parties and the proceedings are almost always initiated by the parents rather than by the state. As a result, litigants in family law proceedings do not benefit from the same Charter protections as accused persons in criminal proceedings or as, to a lesser extent, parents in child protection proceedings. There is, however, a public component to the family law system in the sense that society has an interest in ensuring that family law outcomes are in the best interests of children, and are fair.Footnote 68
The federal Divorce ActFootnote 69 generally applies when divorcing parents need to settle child custody, access and support (child and spousal) issues. Provincial and territorial laws apply regarding child custody, access as well as support (child and spousal) when unmarried parents separate or when married parents separate and do not pursue a divorce, as well as to some issues in divorce proceedings (i.e. division of matrimonial property).Footnote 70 The provinces/territories also have jurisdiction over the administration of justice.
Depending on the province or territory, different levels of court may deal with different family matters. Superior courts can generally deal with all family law matters, and in particular can adjudicate issues related to divorce and property. In contrast, provincial courts may deal with issues such as parenting arrangements and support, but may not grant a divorce or deal with property issues. This can lead to confusion and frustration for litigants. As a response to this issue, several provinces have established unified family courts (UFCs), which permit all aspects of family law to be dealt with in a single court with specialized judges and services.Footnote 71
The provinces and territories offer various family justice services, such as parent information sessions, to help support families through the process. For a list of the family justice services in the province and territories, please see: http://www.justice.gc.ca/eng/fl-df/fjs-sjf/brows-fure.asp
Access to the family law courts can be an issue for claimants based on their ability to understand the process and/or to obtain information support or counsel generally. These access issues also arise because of cultural concerns regarding the manner in which family disputes are resolved. For example, Saskatchewan conducted research to try to identify the reasons behind the low level of Aboriginal clients accessing the family courts, except in relation to child protection matters. In focus group discussions, Aboriginal people stated that lack of resources was the main reason for not accessing the family justice system; however, there was also concern that the system was not culturally sensitive. Two examples were that the system did not sufficiently recognize the role of grandparents and extended family in the Aboriginal community and that child and spousal support processes were either not understood or commonly used.
A family law proceeding will normally begin because of a relationship breakdown; one or both of the parties then commence a legal proceeding.
Through court documents – which depending on the jurisdiction may have different names such as petition, application, statement of claim, and statement of defence or response – the parties will set out their positions on issues such as the reasons for the divorce, the need for support, the appropriate parenting arrangements for the child (custody and access), as well as other issues such as the need for restraining orders. Various pre-trial procedures will follow, and may differ slightly depending on the province or territory. Parties will be required to exchange information related to the financial claims that they are making as well as with respect to care of the children.
Some jurisdictions have case management systems which are intended to move the proceeding along in a timely and cost efficient manner by narrowing the issues as much as possible, ensuring that necessary information is exchanged, and where possible, settling as many issues as possible. Even in jurisdictions where there is no case management system, there may be various types of conferences with a judge, for example a case conference or a pre-trial conference, which are also intended to intended to facilitate the process.
Motions for interim relief are common in family law matters, given that family law matters may take months, and sometimes much longer, to resolve. Motions for interim support, interim parenting arrangements, and disclosure of financial information are examples. In some cases, where there are urgent matters which need to be addressed, for instance, relief to ensure the safety of one or more family members, the courts will hear motions on an ex parte basis (i.e. without notice to the other party). Where relief is granted on this basis, a hearing involving both parties normally occurs a short time later, so that both sides have an opportunity to be heard.
Where matters do go to trial, the parties will call their evidence, and ultimately the judge will resolve the issues. In the vast majority of cases, however, a family law dispute will not proceed all the way to trial and a settlement of the issues will occur; this may happen very early in the process, or may happen much later, for example on the eve of the trial.
Given that family members will have to live on a long-term basis with the outcome of family law decisions made by a judge, parties are encouraged to resolve matters outside of court, where appropriate, through dispute resolution mechanisms such as negotiation, collaborative law, and mediation. There is recognition, however, that in cases involving family violence, special considerations apply, and that depending on the facts of the case, some or all of the above types of dispute resolution mechanisms may not be appropriate.
The rules of evidence in family law tend to be applied less strictly than in the criminal context. Further, the burden of proof in family law proceedings is the civil balance of probabilities, in contrast to the standard of beyond a reasonable doubt used in criminal law proceedings. As a result, while an individual may have charges withdrawn against them or may be acquitted under the criminal system, these facts and allegations may be taken into consideration by the judge in the family law context, and a finding of family violence in the civil context may nonetheless be made.
Finally, in contrast to criminal court decisions, which are only subject to appeal, most decisions in family court are subject to variation, usually based on a material change in circumstances, in addition to appeal.
2.2.2 Parenting arrangements
The determination of parenting arrangements (also referred to as custody and access) is based on the best interests of the child principle. Where there are allegations of family violence (either child or intimate partner abuse), determinations with respect to parenting can be particularly challenging. Some jurisdictions explicitly mention family violence as a factor to be considered in the context of the best interests determination.Footnote 72 In jurisdictions where this criterion is not specifically mentioned, however, it would nonetheless be considered as part of the overall best interests of the child analysis.
The particular facts of each case will determine the appropriate parenting arrangement, and factors such as the nature, severity and frequency of the family violence will be particularly important. Appropriate parenting arrangements may range from arrangements where parents jointly make decisions about the child and both have significant periods of time with the child, to arrangements involving more constraints on a parent’s contact or authority related to the child such as:
- Specified access – the times and places for visits are specifically set out in the order;
- Supervised exchange – the pick-up and drop-off of the child takes place in the presence of third parties, so that the parents are not alone with one another, or is staggered so that the parents do not meet;
- Supervised access – the visit between a parent and child takes place in the presence of a third party;
- No contact between a parent and child, although this is rare. This is likely only to occur in extreme cases where there is an ongoing safety risk to family members or a risk of child abduction that cannot be addressed through other types of orders;Footnote 73
- Non-removal clauses which restrict one or both parents from removing the child from the jurisdiction or the country without either the consent of the other parent and/or the consent of the court.
2.3 The child protection system
The function of the child protection system (or the child welfare system) is to protect children from harm and to help parents care for their children. While the law recognizes that parents have the primary responsibility and right to care for their children, where parents fail to exercise their rights with respect to their children or do so in a manner that is not in the children’s best interests, the state has assumed the duty to intervene to protect the children’s welfare through its parens patriae jurisdiction.Footnote 74
The provinces/territories have responsibility under the Constitution for child protection.Footnote 75 The delivery of child protection services varies across the country; they may be delivered through government offices, through non-profit non-government agencies, or some combination of the two. Many First Nations and urban Aboriginal communities are also served by agencies that have staff with delegated authority from the provinces to provide child protection services in their communities.Footnote 76
It is important to point out that even where a non-governmental organization delivers child protection services, they are doing so on behalf of the state. As a result, while child protection proceedings are civil in nature, the rights of the individuals involved must be balanced against the state’s objective of protecting vulnerable children. In addition, if as a last resort, the state applies to deprive a parent of custody of their child, the proceedings must be conducted in accordance with the principles of fundamental justice because the parents’ Charter rights may be at stake.Footnote 77 In that sense, child protection cases are different than custody cases related to parenting in a private family law proceeding.
This is an area of family law which has a disproportionate impact on Aboriginal children and families. Aboriginal women are more likely than non-Aboriginal women to be younger, single parents, living in poverty, dealing with poor housing, facing risks such as family violence, alcohol or drug addictions, and to have on average more children than non-Aboriginal women. These factors clearly contribute to the high level of Aboriginal children in care or the number of Aboriginal parents involved with child protection services.Footnote 78 A recent report examined the experiences and reflections of Aboriginal mothers involved with the child welfare and legal systems respecting child protection matters.Footnote 79 The report contains a number of recommendations on how to improve access to justice for the mothers and grandmothers involved in child protection cases.
In all Canadian jurisdictions, child protection legislation requires members of the public to report to authorities when they have reason to believe (or suspect in some jurisdictions) that a child is in need of protection. The duty exists despite the fact that information on which the report is based may be confidential, privileged, acquired in the course of professional duties or protected by other legislative provisions. Most jurisdictions allow an exception in the case of a solicitor-client relationship. Civil immunity is granted to individuals who in good faith make a report. Individuals who fail to report may be subject to prosecution under the reporting legislation and professional disciplinary proceedings.
While each jurisdiction sets out distinct parameters for determining whether a child is in need of protection, it generally includes exposure to or risk of physical, sexual or emotional child abuse, neglect and family violence. The child protection system may be triggered when a family experiencing violence is engaged in the family law or criminal justice system, for instance, where police officers responding to spousal violence have reason to believe that a child has been maltreated, including by virtue of exposure to spousal/intimate partner violence.
When a child protection agency or ministry receives a referral that a child may be in need of protection,Footnote 80 a child protection response is provided to determine whether the agency/ministry must conduct an investigation into the matter and determine whether there has been child maltreatment, as defined according to the legislation in the respective province or territory, or, where applicable, to provide a family development (or differential) response. Many jurisdictions’ legislation explicitly lists exposure to domestic violence as a ground for protection.Footnote 81 In the other jurisdictions, despite the lack of an explicit mention of domestic violence as a ground for finding a child in need of protection, children exposed to domestic violence can be found to be in need of protection on the grounds that there is a likelihood of physical harm to the child or the child is likely to suffer emotional harmFootnote 82 as a result of the exposure to domestic violence.Footnote 83
In many cases, in order to reduce the number of times that a child is interviewed, there is a joint investigation by police and child protection authorities. There are often investigation protocols in place in jurisdictions in order to promote collaboration.
In some cases, where children are thought to be in need of protection, the parents may enter into voluntary agreements with child protection agencies for support services. If, however, there is no agreement signed, child protection would also remain involved. These support services may include counselling or treatment programs for abusers. Informal supervision by the child protection agency may also occur.
In other severe cases where a protection authority believes a child is in need of protection, the authority will take the child into care (an apprehension). In most jurisdictions, an apprehension may take place pursuant to a warrant or court order. In addition, in cases where it is believed that the child is at immediate risk, the child can be removed from the home without a warrant or court order. In cases of apprehension, there will be a requirement for a court hearing to take place to determine whether the child is in need of protection and if apprehension is appropriate. In all cases where a court needs to determine whether a child is in need of protection and the appropriate outcome for the child and family, the standard applied is what is in the best interests of the child.
The proceedings take place pursuant to the family court process and rules (e.g. pre-trial conferences, motions) until a final order is granted by the court, either on consent of all parties or pursuant to a trial if the facts are disputed by the parties. During the proceedings, the privacy rights of the individuals are maintained; for example, there is normally a publication ban to protect the identity of the children.
Examples of common child protection orders are: an order for supervision of the child by the child protection authority in the home, an order for the child to be brought into temporary care of the child protection authority, or into the care of a person other than a parent under the supervision of the authority, or an order for the child to be brought into the permanent care of the authority. In cases of family violence, the agency may recommend little or no contact between the alleged abuser and the children and the allegedly abused parent; it may also recommend that this access be supervised. This decision, as noted above, will be based on the best interests of the child.
In Alberta, Ontario and Saskatchewan, child protection legislation explicitly provides that child protection orders will have precedence over any other custody order.Footnote 84 In Newfoundland and Labrador, a party to a child protection case may apply to the court to consolidate with a separate custody case concerning the same child, in order to have both matters decided together.Footnote 85
As is the case in family law proceedings, the rules of evidence are applied less strictly in child protection proceedings than in the criminal process. It is of note that in child protection cases, parents do not have a constitutional right against self-incrimination as in criminal proceedings and may be subjected to discovery requirements throughout the proceedings. In addition, as is also the case in the family law process, an alleged abuser may have charges withdrawn or may be acquitted under the criminal system, but the same facts and allegations under the child protection system may result in a finding that the child is in need of protection.
Finally, all Canadian provincial and territorial child protection legislation confers on children and young people the right to have their views considered by those making decisions that affect them, where their views and preferences can be reasonably ascertained. However, children 12 years or over are often afforded distinct rights that arguably recognize their increased capacity to make their own decisions about their care. A child may also have legal representation by a children’s lawyer where the circumstances require their interests to be protected.Footnote 86
2.4 Civil protection orders and family/domestic violence legislation
This section provides an overview of civil family, and domestic violence legislation in Canada. However, since this legislation does not exist in all Canadian jurisdictions and some of the orders available under specific civil family violence legislation are available through other legal means, a brief overview of protection orders provides some broader context.
2.4.1 Overview of civil protection orders
In addition to criminal protection orders, there are a number of ways for a victim of domestic violence to obtain civil court-ordered preventative protection from intimidation, harassment or assault by an intimate partner, spouse or other family member. Broadly speaking, these are civil restraining orders or injunctions and the various orders available under family violence legislation.
Civil restraining orders (alternately referred to as non-molestation orders, no-contact orders, or recognizances) are available under most provincial and territorial family legislation without the need for the applicant to demonstrate family violence. Child protection legislation generally provides for such restraining orders (alternately referred to as protective intervention orders or no-contact orders) if the court believes that a child’s safety may be compromised by continued contact. These may also be obtained under the general powers of the court to order injunctions.
2.4.2 Orders under family/domestic violence legislation
In Canada, the following nine jurisdictions currently provide civil, court-ordered protection under a specific family violence statute: Alberta,Footnote 87 Manitoba,Footnote 88 Newfoundland and Labrador,Footnote 89 the Northwest Territories,Footnote 90 Nova Scotia,Footnote 91 Nunavut,Footnote 92 Prince Edward Island,Footnote 93 SaskatchewanFootnote 94 and the Yukon.Footnote 95 Other jurisdictions have similar provisions included in other statutes, such as family law legislation. These legislative initiatives all share certain similar features, including: definitions of what constitutes domestic or family violence or abuse; the types of family or conjugal relationships that give rise to protection under the act; the particular types of court orders possible and their duration; provisions for the enforcement of orders made under the act; and sanctions for false or malicious reports. Each act provides for victims or certain designated third parties, including law enforcement personnel, to apply for an emergency protection order or intervention order, ex parte without the necessary involvement of a lawyer “on an expedited basis at no cost, 24 hours per day.”Footnote 96
Under civil family violence statutes, remedies found in a variety of provincial and territorial legislation are made available under one statute. These remedies generally include:
- Emergency protection orders granting the victim temporary exclusive occupation of the home;
- No-contact/communication orders;
- Temporary possession of personal property (including family vehicles or credit cards);
- Temporary care and custody of the children to the victim;
- Interim support orders; and
- Specific prohibitions against selling, converting, or damaging property.
Furthermore, the legislation may also provide for entirely new civil remedies. For example, with the exception of Prince Edward Island, Saskatchewan and Yukon, all jurisdictions that have family violence legislation now enable a civil court to order weapons to be surrendered, seized and stored. This had only previously been clearly available as a remedy under the Criminal Code. The Manitoba Domestic Violence and Stalking Act and Nunavut Family Abuse Intervention Act also introduce a statutory right to compensation for the tort of stalking which may be awarded without proof of damages.Footnote 97 Under Alberta’s Protection Against Family Violence Act, a warrant can be obtained to enter premises, verify the security of a family member at risk of domestic violence and, with that person’s consent, remove them in order to assist or examine them.Footnote 98
These civil statutes are intended to complement the criminal law process, and jurisdictions are encouraged to proceed with criminal charges where applicable. An emergency protection or intervention order is granted by a justice of the peace or judge, based on an ex parte application by the victim or by a designated third party. These are usually short-term orders, available on a balance of probabilities that family violence has occurred, regardless of whether criminal charges have been laid, withdrawn or dismissed. They are designed to give immediate protection to victims of family violence by prohibiting contact between the respondent and the complainant.Footnote 99
While some jurisdictions make emergency protection orders available, some have also created a distinct category of court-ordered protection: prevention,Footnote 100 victim’s assistanceFootnote 101 or Queen’s Bench protection orders,Footnote 102 which can be obtained from a judge of the provincial or territorial superior court only upon notice to the respondent party. In addition to providing greater procedural safeguards to the respondent, this additional class of protection orders generally offers the possibility for longer-term, more extensive remedies.
Protection, prevention or intervention orders are generally not the appropriate forum for determining child custody and access matters (except to the extent that the protection, intervention or assistance order affects a parenting arrangement)Footnote 103 and other separation issues such as support, maintenance, and family property division.Footnote 104 In MacNeil v MacNeil the court concluded that:
The remedies available under the Family Violence Prevention Act are intended to be interim orders for the purpose of providing immediate assistance and relief from family violence. They are not substitutes for relief under other territorial and federal legislation dealing with family property division, support and maintenance, custody and access and divorce.Footnote 105
Several evaluations of civil family or domestic violence legislation have been undertaken, generally with positive results.Footnote 106
Because of the legal status of First Nations reserves, provincial or territorial civil, family law or family violence protection orders cannot apply in relation to real property (e.g. temporary exclusive occupation of the home). An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves (the Family Homes on Reserves and Matrimonial Interests or Rights Act)Footnote 107 received royal assent on June 19, 2013. The Act establishes provisional rules and procedures and provides for the adoption of First Nation laws (which could replace the provisional rules set out in the Act) respecting the use, occupation, possession and division of the value of any interests or rights of family homes on First Nation reserves. The Act also provides that in situations of family violence, emergency protection orders can be obtained to, among other things, order that the applicant’s spouse or common-law partner temporarily vacate the home. Individuals can also apply for a court order awarding exclusive occupation of the family home for a prescribed period. Neither emergency protection orders nor exclusive occupation orders alter the interests or rights held in or to the family home.
2.4.3 Ex parte proceedings
Emergency protection or intervention orders will generally be made available on an ex parte basis if the situation is considered to be sufficiently urgent and serious to justify precluding the respondent from receiving notice and being heard. In most jurisdictions, once an emergency order has been granted, the justice of the peace or judge must immediately forward all documents for review within a specified period (often 24 hours) to a judge of the superior court. The need for swift and discreet action in cases of family violence has justified this lack of notice to the affected party, especially in light of the limited scope and duration of these orders. The respondent must, however, be given speedy and adequate notice of the review order that takes place soon after the original order is made. In C (A L G) v Prince Edward Island, the court concluded that insufficient notice of the Superior Court’s review, under older provisions of Prince Edward Island’s Family Violence Act,was considered a violation of section 7 of the Charter.Footnote 108 The court found that:
The principles of fundamental justice require that a respondent, as a person who is directly affected by the order, be afforded an opportunity to be heard when a judge subsequently conducts a review hearing. … [A]dministrative convenience and the avoidance of emotional harm on the victim, the latter which is clearly an important concern, do not justify the denial of the right of natural justice, including the right to conduct cross-examinations at the court hearing.Footnote 109
Prince Edward Island’s family violence legislation has since been amended to include the respondent’s right to prompt notice of a judge’s confirmation order along with a clear indication of their right to apply to have the order revoked or varied. All jurisdictions now provide similar procedures for the affected party to receive notice of their right to be heard during a review of the order, including the right to conduct cross-examinations.
According to Justice Yard in the 2000 Manitoba case of Shaw v Shaw, a party to a family law matter should be discouraged from going outside of the proceedings to seek an ex parte emergency protection order, in particular when protection can be obtained from the better-informed court handling the family litigation.Footnote 110
2.4.4 Penalties for non compliance
With the exception of Manitoba and Saskatchewan, all of the current family violence statutes include penalties for non compliance. These penalties include fines ranging between $500 and $10,000 maximum and imprisonment ranging between 14 days and two years maximum, with distinctions made between first and subsequent offences. For Manitoba and Saskatchewan, section 127 of the Criminal Code would apply, which creates a default hybrid criminal offence for the non-compliance of a court order when no other penalties are provided by law. Section 127 provides for a maximum two-year prison sentence upon indictment.
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