The MacDonald & Partners Team, Working for You
ARTICLES
Gary Stuart Joseph, Partner and Firm
Chair
Reasons for Decision of J. Greer
Child Support / CPP Benefits
EXPLANATORY NOTE
Domestic Violence in Family Law Cases
Leave to appeal opinion
Tax Treatment of Payments of To and From Non Resident Spouses
von Czieslik v Ayuso
Challenging Arbitration Awards
and/or Removing the Arbitrator under the Arbitration Act, 1991
Domestic Violence in Family Law Cases
Representing clients in domestic violence cases can be complicated. As lawyers, we are often required to initiate these proceedings on a very urgent basis. Given the time constraints coupled with a client who may be emotionally fragile, numb or very anxious, gathering and presenting the evidence in a timely and effective manner can sometimes be difficult and stressful. You are also often dealing with concurrent criminal and/or immigration proceedings and the intersection of these three areas of law can have serious implications for your client and any children involved.
This paper will focus mainly on the impact of domestic violence in high conflict custody and access cases. Contested custody cases often involve a higher level of violence than the general population of separating adults with children. Allegations of violence are more frequently raised in high conflict cases and it is important to know how to properly assess these allegations and to understand the nature and context of the violence within the family. The type of violence (physical, emotional, financial or verbal), the context (mental illness, substance abuse, male battering, self-defence, interactive, or isolated act), determines how you manage your case and the relief that you are seeking.
Domestic violence is a very broad term that encompasses any form of physical, sexual, emotional, or psychological abuse that occurs in family relationships. It can occur between spouses, between parents, or directed towards a child. Research has amply demonstrated the serious short and long term consequences to children who have been exposed to domestic violence.1 Even if a child has not been directly abused or has not witnessed violence against a parent, they are obviously still affected by the impact of the violence on the abused parent’s emotional and/or physical health, as well as their own physical and emotional safety when devising post–separation parenting arrangements. A child’s experience of domestic violence within their family is therefore not limited to being a victim or witness and can have serious implications for his or her emotional and physical health.
Prior to 2006, there were very divergent responses from the court regarding how domestic violence impacted on a custody or access claim. Section 24(3) of the Children’s Law Reform Act specifically provided that the past conduct of a person seeking custody of or access to a child was not relevant to the determination of the issue unless that conduct was indicative of the person’s ability to act as a parent. This section received inconsistent judicial interpretation when addressing the issue of domestic violence and its impact on post-separation custody and access arrangements. Some judges believed that a person who is abusive to his spouse is not necessarily abusive to his children and should have no bearing on the determination of custody and access, particularly since the parents are no longer living together. Other judges believed that parents who perpetrate violence will be held accountable for their behaviour when custody and access questions are considered, regardless if the abuse was not specifically directed at the children. In 1997, Justice Aston wrote the following in G. (D.E.) v. G. (D.T.) (1997) 30 R.F.L. (4th) 320:
“Although the evidence on the issue of violence and emotional abuse is only indirectly relevant to the issue of custody and access, I cannot ignore it as a factor. Notwithstanding that D.E.G. is single, the manner in which he treated his wife reflects on his character, his values and his suitability as a role model.” [Emphasis added]
In 2006, the Ontario government recognized that domestic violence is now a factor that must be considered when determining a child’s best interests in custody and access proceedings and in assessing a parent’s ability to parent. Section 24 of the Children’s Law Reform Act was amended to specifically provide that in considering an application for custody of or access to a child a Court shall consider whether a person has instigated domestic violence when assessing that person’s ability to parent. Section 24 in its entirety reads as follows:
“24(1) The merits of an application under this Part in respect of custody of oraccess to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
(2) Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).”2
The added sections 24(4) and 24(5) are mandatory, not permissive. It is now very clear that domestic violence, if it exists, must be taken into consideration by the presiding judge. As counsel, it is important to argue that violent conduct and the effect of that conduct on the other parent and children must be specifically addressed by the court when determining the most appropriate custody and access order, in accordance with amended legislation.
When first meeting your client, it is essential to assess and determine whether domestic violence is an issue in determining post-separation custody and access arrangements. You need to understand the different kinds of domestic violence, the context of the family violence in each particular case, the history and/or extent of the domestic violence, the severity of the domestic violence, and the impact of the violence on your client and the children when developing an appropriate post-separation parenting plan. In considering the impact on your client and the children, there is an obvious difference between 1) ongoing and repeated acts of physical, psychological, sexual and verbal abuse, intimidation, isolation and threats throughout a relationship and 2) the isolated act of violence which may have occurred during a highly stressful event arising around the time of the parties’ separation which is not characteristic of the parties’ relationship before separation, and for which the violent party understands that the behaviour was wrong. 3
There is a spectrum of violence between these extremes, and counsel should familiarize oneself with the research on this issue, as each situation demands a different response and plan to protect your client and the children. For example, research has demonstrated that serious, ongoing spousal violence does not end with separation and can be lethal. Promoting access which is not supervised or restricted could provide an opportunity for the violent spouse to renew violence during access exchanges or during the access visits. 4
One should also be familiar with social science literature regarding the child’s response. Domestic violence has a unique impact on each individual child, and depends on a variety of factors, such as age, gender, the child’s place in the family (youngest, middle or oldest child), the role the child adopted in the family (protector, scapegoat, referee, perfect child), the child’s intelligence, creativity, ability to cope, extended family support, poverty, household stability, social support, education, the extent of the violence that the child witnessed or experienced, the impact on the non-offending parent, the identity of the perpetrator (father, step-father, boy-friend, mother) and whether the child was directly abused as well. 5 However, despite the differential responses of individual children to domestic violence, they have a right to be safe and free from violence, including violence directed towards their caregivers.
In this period of family law, with the growing shift towards co-parenting, shared parenting, joint custody and parenting plans, it is particularly important for counsel to understand the differentiated approach to custody and access determination in cases involving family violence. The focus in domestic violence cases needs to be on promoting safety and security for the abused parent and the children, and not on promoting greater communication or opportunity for contact between the parents. In cases of serious domestic violence, the violence does not end with separation. The principle enunciated by the Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.) and Ladisa v. Ladisa [2005] O.J. No. 276 (C.A.) is only the starting point when advocating against joint custody in cases of serious domestic violence: where there is no evidence of historical co-operation and appropriate communication between the parties, then joint custody is not appropriate.
Domestic violence perpetrated repeatedly by one spouse towards the other is often, if not always, about control. Joint custody in these circumstances will only serve to increase an abuser’s ability to control and intimidate the other parent and to exacerbate “the feeling of powerlessness and entrapment”6 experienced by the victim. Further, the risk of ongoing or repeated acts of physical, psychological, economic and/or verbal violence will be greatly increased with a joint custody order, to the detriment of the child and victimized parent.
The trend towards joint custody/parallel parenting orders in high conflict cases should also be avoided in domestic violence cases where there is one obvious perpetrator of violence and abuse. Parallel parenting orders are designed to minimize or eliminate contact between the parents while ensuring both maintain an active role in the children’s lives. This may seem like an attractive option in domestic violence cases if the violence is only perpetrated against a parent and not the children directly. However, this approach ignores the presumption underlying ‘parallel parenting’ orders: that both parents are equally able to parent the children despite the high conflict between the parents.7 Clearly this is not the case when one parent has repeatedly perpetrated violence against the other parent. Notwithstanding the protection from continued exposure to inter-parental violence that a parallel parenting order may provide a child, the order fails to address the fact that a parent who has committed violent acts has very limited parenting capacity and will expose the child to further emotional harm through poor parenting and modelling. You should be prepared to argue against these types of arrangements in cases where one parent been demonstrably violent towards the other parent, in accordance with section 24(4) of the CLRA.8
Evidentiary Considerations:
How do you assess the validity and seriousness of the allegations of domestic violence that your client has raised? Domestic violence allegations are raised frequently in family court proceedings and if the court determines the allegations are unfounded this could have serious repercussions on the parent alleging abuse. Raising issues of violence can be a double-edged sword if the evidence to support these claims is not properly presented or your client is considered not credible. The victim may be perceived to be falsely accusing the other parent to reduce or limit access, or worse, engaged in “parental alienation”. She may even lose custody if the Court finds that the allegations were deliberately and maliciously false. How do you ensure that there is proper evidence to support your case, at both the motion and trial level?
Representing the Victim:
When representing a client who alleges domestic violence, the best evidence is often only that of your client. Victims of serious domestic violence will often not disclose the abuse to family, colleagues, or even their doctor or the police. Often they will be accompanied by the abuser to the hospital. Often the only witnesses are the children in the household. How much weight should the statements of children be given and are these statements even admissible as evidence?
At the initial stage of litigation, counsel may not have the benefit of independent corroboration and must act as quickly possible. These cases often come to you on an urgent basis, particularly if the client had fled the home with the children without notice or there are safety concerns for your client and the children. Given that the best evidence is often only your client’s evidence, the affidavit you prepare to support your client’s interim relief must be as detailed as possible. It must present as complete a picture as possible of the abuser’s personality and behaviour and the impact of this behaviour on your client and the children.
You should be seeking an order for temporary custody, an order for no access or supervised access to the children pending a full investigation and/or assessment of the issues, and a restraining order with very specific terms. (The new restraining order provisions enacted under Bill 133 will be addressed later in this paper.) If the parties are legally married, you need to consider whether to seek emergency exclusive possession of the matrimonial home or apartment, a remedy only available in the Superior Court or the Unified Family Court. This should be discussed carefully with your client. An exclusive possession order does not ensure that the victim and children will be safe from further abuse. The abuser knows exactly where she and the children are residing. It may be in your client’s and the children’s interest to stay in a place of safety such as a shelter or transition house rather than remaining in the matrimonial or family residence.
It is not possible to draft affidavit material and present the evidence based on one meeting with your client. It usually requires two or sometimes three meetings to get as much detail as possible. Although we are trained to keep motion and affidavit material short and to the point, we are doing a disservice to our clients who are victims of domestic violence by not describing in our affidavit materials as many details and as incidents as possible that are relevant. Evidence in these cases is crucial and it is a significant challenge to present the evidence effectively without much time and effort.
The first interview is often the most difficult because you are trying to put the client at ease while eliciting as much detail as possible about physical, sexual, verbal and psychological abuse. Your client may be emotionally numb, withdrawn, repressed and/ or humiliated about disclosing these details to you. She may also be very frightened. She will not want to recall the incidents and she may not remember details without further exploration by you. It is very important for you to gently explain to the client why the detail is necessary. General statements of abuse in an affidavit are not effective or necessarily believable. For example, compare the following two statements:
- “Last Sunday, my husband assaulted me.”
- “Last Sunday, my husband slapped me across the face in front of our three year old daughter and then pushed me to the ground and repeatedly smashed my head against the floor with both of his hands. He was calling me a “slut” and “a stupid cow” while he was doing this. He stopped when our daughter started screaming uncontrollably.”
Getting these details from your client can be very emotional and difficult for her. You need to be a good active listener and you need to be aware of you own body language and emotional response to such disclosures. Representing victims of abuse can also sometimes frustrating. Patience and understanding are key. After the first interview, if your client has not already done so, ask her to write down as much of her story as possible, and ask her to try to describe and recall as many incidents as possible prior to your next meeting. You should also find out whether your client is seeking professional help. Be sure to touch base with your client’s counsellor afterwards if you are at all concerned that the meeting caused further trauma for the client. If your client is not receiving professional help for either her or the children, you need to be aware of the resources available for your client and refer her to these services.9
The importance of ensuring the accuracy of your client’s disclosure of abuse in her affidavit and that it is consistent with any statement or report given to third parties, such as the police or medical personnel, can not be overstated. Ultimately, domestic violence cases often turn on the credibility of the parties, since the availability of third party evidence is limited. If there are inconsistencies in your client’s statements to the police or other third parties, then this needs to be addressed and adequately explained.
If you require an interpreter to meet with your client, a family member or friend should not act as an interpreter. Finding a qualified and sensitive interpreter whom the client feels comfortable with can be difficult, but it is essential to maintain open and honest communication. In Toronto, the Barbra Schlifer Commemorative Clinic Cultural Interpreters Program provides excellent interpreters at legally aided rates who are trained to be sensitive to cultural and domestic violence issues.
If your client is residing in a shelter, it is very important to develop a good working relationship with shelter staff. They can be enormously helpful in connecting your client with the appropriate resources, such as counselling for her and the children, child care, applying for and finding appropriate housing. They can also provide important emotional support for your client, accompany your client to court, assist with court preparation, assist the client in obtaining legal aid, if necessary, and assist with the criminal proceedings, if any. With your client’s permission, you should keep shelter staff apprised of the legal proceedings, including the relief being sought, the pending court dates and what court orders have been made. The staff can better assist your client with this knowledge, which in turn helps your client management.
In your first meeting, your client will also need to hear from you. She will need to be informed about her rights and obligations and she will also need to be reassured that there are legal remedies available to protect her and her children. She may have a lot of questions and it is important to address those questions as best as possible so that she feels reassured and that she has regained some control of her situation. It will also assist you in developing a trusting relationship with the client.
When meeting with your client to prepare materials, it is often helpful to go through the different kinds of abuse. For example, although not an exhaustive list:
1) If the abuse was physical:
- Where was victim hit...what part of her body
- Hit with an object? What kind(s)?
- How hard was she hit? How many times?
- How often? Daily, weekly, monthly, episodic?
- Pushed?
- Shoved?
- Weapons involved?
- When did it occur (during pregnancy, around specific events; chronology of abuse during the relationship—did it escalate? Triggering events?
- Where did the abuse occur? Only at home? Any time in public?
- Children witness?
2) If the abuse was emotional:
- Was it name calling – list all the names
- Constant accusations of sexual infidelity?
- Condescending, belittling comments – what kind – critical of housekeeping/cooking?
- Swearing?
- Isolating the client from family/friends – how?
- Taking money away/keeping money away – how often?
- Taking the phone away – how?- how often?
- Damage to property? Describe.
- Threats – what kind of threats exactly- how often? – threats to take children; to kill her if she leaves; when? How?
- Children witness?
Find out what harm your client suffered:
- Physical injuries: describe the nature of each injury;
- feelings of worthlessness, powerlessness, fear of sleeping, unable to eat because of stress, weight loss, depression, suicidal, feelings of helplessness, isolation; fear for her own safety and her children’s safety;
Third party evidence is obviously extremely helpful. Determine whether your client went to her family doctor or the hospital for medical treatment. Obtain any emergency medical records, hospital records or family doctor’s records that may corroborate the abuse. Determine whether the abuser attended the medical appointments with your client and make sure you set that out in your affidavit if the client did not disclose the cause of her injuries to medical staff.
If your client disclosed abuse to her family doctor, get a report from him or her, or obtain copies of the medical records. If your client sought any professional counselling or is in therapy now, get a report from her therapist. Find out whether any neighbours, friends or family members witnessed any incidents of abuse, either physical, emotional, or verbal. Obtain affidavits from these witnesses. Do not simply get a letter. Letters attached to affidavits are inadmissible hearsay and should not be presented as evidence on motions. 10 School reports and reports from professionals are also hearsay and while affidavits are always preferable, a court may decide that these reports are sufficiently reliable to be admitted on motions, pursuant to Rules 14(18) and 14(19) of the Family Law Rules.
Find out whether your client reported any incident to the police or whether the police were called by neighbours. Obtain copies of all police occurrence reports, which are generally admissible under the business record exception to the hearsay rule.11 If criminal charges have been laid against the abuser, then this should be disclosed and a copy of the bail conditions should be attached to your client’s affidavit. If the alleged abuser is in custody, then this should be disclosed and any information about his release. Find out whether the abuser has a previous criminal record or has been previously charged for violent offences. This information should be disclosed as well.
If your client kept copies of abusive or threatening e-mails written by the abuser, then include copies of those admissions in your client’s affidavit materials. These statements can sometimes be extremely effective in assisting the Court in understanding the abuser’s personality. If your client has kept threatening or intimidating voice-mail messages, obtain a certified transcript of these messages and include them in your materials. As well, if your client has any photos of injuries that she sustained, then this can be very powerful evidence. It is important to establish who took the photos (the client, the police, a friend), and how long after the incident were the photos taken.
It is also very important to explain in the affidavit the reason(s) why the client stayed in the abusive relationship (fear, lack of financial resources, the children, lack of alternate accommodation, immigration reasons, the hope that the relationship would improve) and the reasons the client finally left: what triggered the client’s final departure. Include a detailed safety plan and your client’s plan of care in your materials as well.
Evidence regarding the children:
Evidence regarding the impact of the violence on the children is obviously of utmost importance and should be included in your client’s affidavit. Counsel should ascertain how old the children are, what they witnessed, if anything, how they reacted, whether the children are experiencing behavioural problems. Are they having problems at school? Are they insecure or clingy or are they angry with the victim? Have they aligned with the alleged abuser? Are they having difficulty eating or sleeping? Are they bedwetting? Are they aggressive with other children or their siblings? What kind of relationship do the children have with the alleged abuser? Are they afraid of him or her? Do they try to act as decoys during incidents of violence? Have they tried to intervene or call 911 themselves? Were the children abused? If, so was the Children’s Aid Society involved? Have the children expressed any views and preferences to other witnesses or trained professionals such as social workers, counsellors?
Although some of the above information can be addressed in your client’s affidavit materials, it is very important to try to obtain independent evidence from the children’s school-teachers, day-care workers, or counsellors, if any. A report from the Children’s Aid Society, if involved, can also be very helpful. If the children are not in counselling, then assist your client in arranging counselling for the children. If there are neighbours or family members who have witnessed the children’s behaviour or trauma, then affidavits should be obtained from these witnesses. If the child has kept a journal, in some circumstances, with the child’s permission, that evidence may be helpful.
Obtaining children’s aid society or medical records may be difficult without the consent of the other party. If the family doctor also treated the abusive spouse, then he or she may claim privilege or a conflict of interest. Similarly, a children’s aid society will generally not disclose records in domestic custody and access cases without both parties’ consent or a court order. If consent is not forthcoming, then you will need to bring a Family Law Rule 19 third party motion for production and serve the opposing party and the appropriate third party doctor or children’s aid society in advance of your motion date.12 Most agencies will provide you with the draft order that they require and will not oppose the motion if the order includes the appropriate terms.
It may be essential to obtain a thorough investigation and assessment of the domestic violence raised, and the impact on the child, either by the Children’s Aid Society, a professional assessor, or a social work investigator from the Office of the Children’s Lawyer. Consider seeking an assessment or OCL social work investigation in your motion materials. Choose your expert carefully is seeking a section 30 CLRA assessment. The children’s statements regarding any violence they witnessed or experienced can be canvassed thoroughly by a trained professional. This is a very effective way of introducing the child’s evidence in the proceedings without causing the child further trauma. However, this evidence is often introduced much later in the proceedings, which is problematic when attempting to secure the appropriate protective orders initially and on urgent basis.
It is important for counsel to understand that children’s statements to a qualified professional, such as social worker or police officer, about specific acts of violence may be admitted under the principled exception to the hearsay rule, and counsel should be familiar with these evidentiary legal principles, and how to make submissions or conduct a voir dire on this issue, if necessary. It is also important to note that children’s wishes or views and preferences in custody and access arrangements can also be admitted under the ‘state of mind’ hearsay exception. Obviously a child’s wishes reported to a parent should be treated with caution as we all know that children often express different wishes to each parent. However, a child’s wishes as expressed to an independent third party go to his emotional and or mental state at the time and can be admissible under this traditional hearsay exception.13
Representing the Alleged Abuser:
It is extremely damaging to a parent to be falsely accused of abuse. It requires much work to prove otherwise. Again, independent third party evidence regarding the child’s relationship with your client, the client’s relationship with the other parent, the client’s history with co-workers, day-care workers, babysitters, previous spouses or partners, will be very helpful. A detailed response to allegations made in your client’s affidavit is very important. Although the delay involved can be very frustrating to the client, particularly if there has been an order suspending or restricting access, counsel must strongly advise the client to fully co-operate with any assessment or social worker investigation and to fully participate in any supervised access ordered. The reports from a supervised access centre can greatly assist your client if the access is consistent and positive.
If the client is criminally charged, and has been detained pending a bail hearing, it is essential for family law counsel to work with the criminal counsel to ensure that the terms of bail include a provision that any contact between the child and the alleged abuser is “in accordance with a family court order.”14 This term should be set out very clearly in the bail conditions so that access and/or custody, if possible, can be sought in family court. If the client has contacted you after being charged and released, and this term is not set out in the client’s terms of bail or undertaking provided to the police, then you need to ensure his criminal lawyer brings an application to vary the terms of the bail or undertaking as quickly as possible. This can be difficult, especially if the Crown does not consent to the variation, which normally proceeds in the superior court.
The delay involved in resolving criminal charges with restrictive bail conditions can have a devastating impact on your client’s relationship with the children and his or her legal position in the family law proceedings. A family court can not make any order for custody or access that conflicts with the criminal bail conditions. In Shaw v Shaw, [2008] O.J. No. 1111, Justice Pugsley comments on the detrimental impact of criminal proceedings and terms of bail in particular that do not taken into account concurrent family law proceedings which address the children’s best interests:
“The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact. Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. 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 the 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 refuses 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 defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit…Ms. Shaw's case illustrates the dangers of speedy or discretionless criminal procedure.”
When drafting your affidavit for the family law motion, it is also important to provide a copy to criminal counsel and to be as careful and as accurate as possible. Family and criminal counsel should keep each other fully apprised of all developments in their respective cases. Copies of the transcripts of the criminal trial, particularly if the client was acquitted, can be useful to family counsel. It may also be helpful to arrange for an independent assessment of the client if the client denies any anger management issues. Some family courts will admit a polygraph test as some corroboration of the client’s denial of abuse, so this should be considered as well.
If there has been violence, it is important to canvass with your client the nature and extent of the violence. Was it an isolated incident? Was it interactive spousal violence? Does it appear that the violent behaviour was out of character for your client and does your client acknowledge that it was inappropriate? As counsel, are you concerned that there may be a lengthier history here?
If there appears to be strong evidence of abuse, counsel should work with the client in establishing supervised access as quickly as possible while obtaining anger management and other appropriate counselling. Acknowledging the problem and taking the appropriate steps to address the issue will greatly assist the client towards re-building, if possible, a healthy and stronger relationship with the child. It is important to obtain reports from the client’s counsellors demonstrating any progress made.
As well, make sure to advise your client to punctually attend all supervised access visits. This will permit your client to maintain regular contact with the children with a view towards expansion if the visits are positive. Obtain copies of all reports from the supervised access centre, which will hopefully describe a positive relationship between your client and the children. Explain to your client the value of having neutral qualified professionals observing the visits, particularly if the visits are good, despite the somewhat artificial environment. The reports may be admissible under the business records exception to the hearsay rule and can be introduced on a motion as an exhibit to an affidavit, or at trial as business records, so long as you have provided the appropriate seven days notice for business records under section 35 of the Evidence Act.15
Strategies for Case Management, Motions and Trials
Under our current case management system, motions prior to case conferences are the exception to the rule. Rule 14(4) specifically provides that no notice of motion or supporting evidence may be served and no motion may be heard before a case conference dealing with the substantive issues in the case has been completed. The Family Law Rules introduced a less adversarial approach to family law which discourages the bringing of motions and provides that the first step in a proceeding is almost always the case conference. The parties are encourages to explore settlement options, narrow the issues and move the case towards an expeditious and less contested resolution.
In cases of serious domestic violence, counsel must be prepared to demonstrate effectively that a motion for temporary relief should be brought and heard immediately, well in advance of the case conference, which is often not scheduled for several weeks after the proceedings are commenced. Even if one can obtain a case conference date earlier, a judge can not make an order at a case conference on a substantive issue that is opposed or highly contested, such as custody, supervised access or restraining relief. 16 A person who has unilaterally removed the children from the family residence (and sometimes jurisdiction) without the consent of the other parent is taking a risk if she does not get to family court quickly. The alleged abuser may contact the police and report the victim and children missing, or abducted. There is a real risk that your client could be charged with abduction if she does not seek immediate relief in the family court setting out the reasons for her urgent, unilateral departure with the children. The alleged abuser may also immediately attend court and obtain an order for custody and an order to locate, apprehend and return the children, pursuant to section 36 of the Children’s Law Reform Act.
Consequently, if you are acting for either the victim or the alleged abuser, you need to demonstrate that pursuant to Rule 14 (4.2) an urgent motion is necessary in advance of the case conference. Rule 14 (4.2) provides that the ordinary rule regarding case conferences does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. In Rosen v. Rosen. [2005] O.J. No. 62, Justice Wildman has interpreted “urgency” to contemplate such issues as abduction, threats of harm or dire financial circumstances. Justice Wildman also sets out a procedure to follow in requesting an urgent motion prior to a case conference, although when there is a threat of serious and imminent harm to your client and/or the children, counsel should be well advised to proceed immediately with the motion.
It is also important to consider whether the motion should be brought without notice pursuant to Rule 14 (12) of the Family Law Rules, which provides that a motion may be made without notice if:
“(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) service of a notice of motion would probably have serious consequences.”
O. Reg. 114/99, r. 14 (12).
Counsel should proceed very cautiously when considering whether to bring a motion without notice. If your client is still residing in the matrimonial home and there is imminent danger that the abuser will return to the home after being released from detention or there have been threats of abduction or harm, then a motion without notice may be appropriate and necessary. If your client and the children are residing in a shelter or another place of safety, you may not be able to satisfy the test of “immediate danger” under subrule 14 (12) (c), and there is a risk that your request to proceed without notice will be denied and the motion adjourned. This could have potentially serious consequences for your client if the alleged abuser is also attempting to bring an urgent motion and gets to court first, which we have all experienced at least once in our practice. It may be more prudent to serve the motion on short notice, even 24 hours notice.
Once the temporary protective orders are obtained, the case management process can be effectively utilized to establish a time-table for obtaining the necessary third party disclosure and the appropriate third party intervention or assessment to further establish your case. A comprehensive assessment of the allegations of family violence may be necessary for the court. Section 30(9) of the Children’s Law Reform Act provides that an assessment concerning custody and/or access is admissible as evidence in the case, which means it is admissible at trial and on the hearing of the motion. Counselling for the victim, children and the alleged abuser may be arranged with appropriate time-tables to obtain reports or feed-back from these professionals, particularly if the abuser agrees to undergo parenting or anger management courses. If supervised access is arranged, there will need to be sufficient time to assess how the visits are proceeding, based on the observation reports. The case management process can be used effectively to monitor any progress that has been made, and to establish time-tables to move the case towards an effective resolution or trial.
If there is no possibility of a resolution short of trial, the case management process will assist counsel in gathering and presenting the appropriate documentary evidence for trial, identifying and preparing the appropriate witnesses, including expert witnesses. You should be requesting an affidavit of documents from opposing counsel pursuant to Rule 19(1) of the Family Law Rules so that there are no surprises at trial, and you should ensure that you have identified and obtained all the necessary documents from third parties well in advance of trial, by bringing your motion for production under Rule 19(11) as early as possible. As well, serving and filing a Request to Admit to documents and facts pursuant to Rule 22(2), including all the documents you intend to introduce at trial should be done as early on as possible, and at least 30 days before trial. If no response or denial to your Request to Admit has been received within 20 days, your documents will be deemed authentic and the facts set out deemed to be admitted. Make sure that the required notices are sent out to introduce and admit business records, medical reports and expert reports. Observation reports, police occurrence reports and medical records may all meet the business records exception to the hearsay rule and be introduced at trial. 17 As mentioned earlier, if the children have made statements or disclosures regarding the violence to third parties such a police officers or social workers that have been properly recorded, then these statements may be admissible at trial under the principled exception to the hearsay rule. If the evidence is found to be both necessary and reliable, then the children’s statements may be admitted18 . If counsel can not agree upon the admission of the statements pursuant to the principled exception, then a voir dire should be conducted at the trial to determine if the tests of necessity and reliability have been met.
The preparation of your client’s evidence for trial is essential. As stated earlier, the best evidence in domestic violence cases is often only that of the parties. The court’s assessment of your client’s credibility will ultimately determine the outcome at trial. Ensuring that your client is well prepared emotionally and otherwise to provide detailed and compelling evidence will be your biggest task.
New Restraining Orders Provisions under Bill 133
Finally, when acting in cases involving domestic violence, it is very important to be aware of recent changes to the restraining order provisions under the Family Law Act and the Children’s Law Reform Act. Bill 133, An Act to Amend Various Acts in Relation to Certain Family Law Matters and to repeal the Domestic Violence Protection Act, 2000,19 creates significant changes to the restraining order provisions under both Acts.
Section 46 of the Family Law Act is repealed and the following substituted:
“46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Same
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
Provisions of order
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate.
Transition
(4) This section, as it read immediately before the day section 35 of the Family Statute Law Amendment Act, 2009 came into force, continues to apply to,
(a) any prosecution or other proceeding begun under this section before that day; and
(b) any order made under this section that was in force immediately before that day.
36. The Act is amended by adding the following section:
Order regarding conduct
47.1 In making any order under this Part, other than an order under section 46, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly.”
Prior to the introduction of Bill 133, a breach of a restraining order was prosecuted under the Provincial Offences Act. The enforcement of restraining orders was very difficult as the police would rarely charge offenders for breaches under the POA, and the penalties were minimal. Bill 133 now makes a breach of a restraining order a criminal offence pursuant to section 127 of the Criminal Code. A person who breaches a restraining order may be arrested by the police, charged with a criminal offence and held for a criminal bail hearing. The case would then proceed in criminal court and, if convicted, the offender could be subject to imprisonment for a term not exceeding two years.
Further, Bill 133 does not limit the application for a restraining order under the Family Law Act to persons who have cohabited for three years or more: a person who has cohabited with another person for any period of time may apply for a restraining order. It does not, however, apply to dating relationships. The Children’s Law Reform Act definition of who can apply for a restraining order remains unchanged -- either parent of a child may seek such an order.
The person seeking the restraining order must demonstrate on a balance of probabilities that she "has reasonable grounds to fear for... her own safety or for the safety of any child in... her lawful custody." (Section 46 (1)).
All restraining orders will now appear on a standard form order (currently being piloted), which will make the orders more easily understood by both the victim and the abuser and will hopefully encourage better enforcement by the police. The police are often reluctant to enforce, and in some cases understandably confused by, inconsistently and variable restraining orders. The introduction of the standard form order as well as the ability to treat breaches of restraining orders as criminal offences with more serious penalties and consequences for the abuser may better protect women and children who are experiencing domestic violence.
However, there has been some concern that women experiencing domestic violence may be more reluctant to seek restraining orders given the serious criminal consequences to the abusive spouse and the implications of incarceration to the family breakdown. As counsel, we have all represented clients who obviously want the violence or abuse to stop, but does not necessarily want the abuser to be incarcerated. This is particularly true if the abuser provides the main source of financial support for the family or the accused and/or the victim have vulnerably immigration status and at risk of deportation if the abuser is convicted. As well, often the victim is very concerned about the impact on the children if the other parent is incarcerated. Some judges may also be more reluctant to grant restraining orders given these considerations.
Some critics have argued that the criminal courts are often not well-suited to deal with the issue of family violence and can often further complicate the issues for the parties and children in family court when addressing family breakdown. The criminal court response to breach of family law restraining orders may not be sensitive to the other issues facing the family in the family court system, such as access and support issues. Family law counsel will need to work very closely with the Crown or defence counsel in these circumstances to ensure that the concurrent proceedings meet the same objectives for your client, whether representing the accused or victim.
Further, although we have yet to see any judicial interpretation of the restraining order provisions, some judges may require a significantly higher standard of proof and insist on greater evidentiary requirements given the criminal consequence to the accused. It may actually be more difficult to get restraining orders under the new provisions, although time will tell. The Bill also repealed the Domestic Violence Protection Act (DVPA), which was passed in 2000 but never proclaimed. The DVPA permitted access to emergency restraining orders, and access to a justice of the peace on an emergency basis, including nights and weekends. The new provisions do not address the need to get emergency orders after hours in cases of very serious and escalating violence.
Having said that, the criminalization of restraining order breaches is generally seen as a very positive change in addressing serious cases of domestic violence. Advocates hope that the new provisions will greatly assist with the effective enforcement of family court restraining orders and provide better protection for our clients and children who have experienced domestic violence.
Sheilagh O’Connell
Family Law Office-Legal Aid Ontario, Toronto
1 See Sudermann, M. & Jaffe, P. (1999). A handbook for health for health and social service providers and educators on children exposed to woman abuse/family violence. Minister of Public Works and Government Services Canada (Family Violence Prevention Fund, Health Canada): Ottawa, ON; N. Bala et.al. (1998) Spousal Violence in Custody and Access Disputes: Recommendations for Reform (Ottawa: Status of Women Canada); “Spousal Abuse and Children of Divorce: A Differentiated Approach,” N. Bala, (1996) Canadian Journal of Family Law, pages 215-285; Wolfe, D.A., Zak, L., Wilson, S., Jaffe, P. (1984) Child witnesses to violence between parents: Critical issues in behavioural and social adjustment, Journal of Abnormal Child Psychology, 14, (1), 95-104.
2 Children’s Law Reform Act, R.S.O. 1990, C. c. 12, s. 24, S.O. 2006 C.1. F.3
3 See N. Bala, “Spousal Abuse and Children of Divorce: A Differentiated Approach” supra, note 1, for an excellent discussion on the typologies of family violence.
4 Ibid.
5 What About Me! Seeking to Understand A Child’s View of Violence in the Family, Alison Baker and Linda Cunningham, (2004) Centre for Children and Families in the Justice System of the London Family Court Clinic, available online only at www.lfcc.on.ca/whataboutme.
6 Linda McLeod, ‘Battered But Not Beaten…” (Ottawa; CACSW, 1987)
7 Ursic v. Ursic, [2006] O.J. No. 2178 (C.A.)
8 For an excellent critique of parallel parenting orders see Phillip Epstein and Lene Madsen’s article, “Joint Custody with a Vengeance: The Emergence of Parallel Parenting Orders”, 2004, Vol. 22 Canadian Family Law Quarterly, 1
9 Some examples of excellent resources and services available for battered women are the Assaulted Women’s Helpline (Ontario), the Barbra Schlifer Commemorative Clinic (Toronto) Shelternet (Canada), Education Wife Assault (Toronto), and METRAC (Toronto).
10 See Lisanti v. Lisanti [1990] O.J. No. 3092, although Rule 14(19) of the Family Law Rules sets out the very limited situation where hearsay evidence can be used on temporary motions.
11 See Catholic Children’s Aid Society of Toronto v. J.L. [2003] O.J. No. 1722 for an excellent summary of what police records are proper business records and therefore admissible under the hearsay exception.
12 See Rule 19(11) of the Family Law Rules
13 See Rollie Thompson’s excellent articles on hearsay in family law, including “Are There Any Rules of Evidence in Family Law?” (2003), 21 Canadian Family Law Quarterly, 245-318 and “The Cheshire Cat, or Just his Smile? Evidence Law in Child Protection” (2003), 21 Canadian Family Law Quarterly, 319-378, and as well his paper, “An Evidence Update for the 2003 Articles” presented at the May 2007 Family Law Summit: A Multidisciplinary Perspective, CLE, the Law Society of Upper Canada. See also Justices Roselyn Zisman and Carole Curtis’s article, ‘Evidence in Child Protection Matters”, (2006), Federation of Law Societies National Family Law Program. Although within the context of child protection proceedings, there is an excellent overview of the admissibility of a child’s statements using the principled hearsay approach.
14 The term of bail usually reads “no contact direct or indirect with the victim or children named, except in accordance with a family court order”.
15 The elements that are required to establish the business records exception to the hearsay rule are 1) the records must be maintained and made in the usual and ordinary course of business; 2) it is the usual and ordinary course of business to make the record at the time of the event or within a reasonable time thereafter 3) you must give proper 7 days notice under the Evidence Act. (Section 35 Ontario Evidence Act). Individual observation reports that contain improper opinion evidence or hearsay from third parties not under an obligation to report the information may be excluded.
16 Rule 17(8) of the Family Law Rules, although some judges have used subrule 17(8) (b) to make orders that are not on consent at case conferences.
17 The document must still be relevant and probative to the issues of course and can not include hearsay from third parties not under an obligation to report the information, or improper opinion evidence to be admitted. See Setak Computer Services Corporation Ltd. V. Burroughs Machines Ltd. (1977) 15 O.R. (2d) 750.
18 R v. Khan [1990] 2 S.C.R. 531; R. v. Khelawon [2006] S.C.J. No. 57
19 The Bill was introduced into the legislature on November 24th, 2008. The Bill was carried in its Third Reading on May 7, 2009 and received Royal Assent on May 14, 2009. The majority of the changes brought about by the Bill will not come into force until proclamation.