Refusal to grant an order solely because similar relief is available elsewhere can result in reduced protection or no protection at all. Some domestic violence prevention statutes state expressly that protective action should not be denied solely because criminal charges or orders are available. Victim fear, as discussed earlier, has high predictive value, and victim empowerment is an important therapeutic goal in domestic violence cases.
On the one hand, ignoring a targeted person's perspective on risk can result in harm and reduce empowerment, an important therapeutic objective.
On the other hand, when service providers, professionals, lawyers and courts come across evidence that indicates a risk of harm not perceived by the targeted person, can risk and safety concerns be ignored? What happens to public confidence if indicators of risk are ignored and further domestic violence or death ensues? There are no easy answers to such questions.
People targeted by domestic violence are entitled to make decisions about their own lives.
Nonetheless such decisions also affect the safety of children and decisions to revoke protective orders can be the result of financial pressure, intimidation, manipulation, or lack of information about risk and danger. Consequently, Crown prosecutors and family lawyers representing targeted parents should explore the circumstances surrounding requests to revoke protection orders, at a time and place when the requesting party is not in the perpetrator's presence or influence.
Steps can be taken to ensure that the request reflects a realistic assessment of safety and does not reflect manipulation, coercion or control. The targeted parent can be encouraged to consult a domestic violence expert, a domestic violence advocate, and a victim services professional before proceeding. If safety is a concern, domestic violence self-assessment tools can be made available to the targeted party to enable a preliminary self-assessment of the level of risk and the potential for lethal outcome see Part 7 above.
If children are involved, and safety is a concern, consider involving child protection authorities and encourage the targeted party to consider carefully the implications of revoking the protection order. Outlined here is the list, modified for a Canadian context:. People targeted by domestic violence have numerous reasons for resuming cohabitation with violent partners. Such reasons may have little to do with cessation of abuse or violence.
In fact, repetitive reconciliation is an expected and 'normal' pattern in domestic violence cases. Sometimes the risks associated with separation for example loss of housing, loss of income, loss of immigration status, loss of parenting, or loss of knowledge of the whereabouts of the perpetrator can appear to outweigh the risks of resuming cohabitation, particularly if the potential for domestic violence can be reduced or removed.
When variation of an order to enable resumption of cohabitation is contemplated, while some provisions such as no contact, no communication, and exclusive possession of the marital home are obviously inappropriate, other provisions such as those set out below can offer some degree of continuing protection when appropriate to the circumstances of the case and permitted by statute :. Provisions to enhance safety and protection during cohabitation can enable the targeted party to obtain help quickly without additional applications to courts if risk increases or violence resumes.
In appropriate circumstances, when such provisions are allowable by statute, consult the targeted adult to determine if s he would like any or all of such provisions to continue. Note, however, that civil restraining orders during cohabitation are not possible in every Canadian jurisdiction. For example, section of the Family Services Act , S. Ensuring that such orders are clearly explained to each party helps to ensure that the perpetrating party knows his or her obligations and that the targeted person knows when to seek help.
Family and criminal defence lawyers ought, it goes without saying, to advise clients that they may not resume contact or cohabitation in breach of the terms of a court order; the order must be changed first.opobijigyv.tk
If You Are Threatened by Domestic Violence
Some of the case law is indicating reluctance to grant restraining orders on a without notice or ex parte basis unless:. In connection with protection orders pursuant to domestic violence prevention statutes, most provincial and territorial statutes authorize and set out conditions for without-notice claims for civil protection. The terms of some statutes are more restrictive than others. In recognition of some of the dangers of granting orders without giving the other party notice or an opportunity to be heard, courts are imposing a duty to disclose full particulars, including information adverse to self-interest.
See, for example: J. Family lawyers will wish to advise clients of the importance of full disclosure when applying for protection on an interim ex parte basis as well as the potential implications of disclosures against interest in connection with any associated criminal and child protection proceedings, while keeping in mind professional duties in connection with ensuring the correctness of affidavit evidence.
In addition, family lawyers will wish to ensure that the client understands the potential for criminal liability for providing false information in a sworn affidavit or in testimony. Indeed Breese Davies, Erin Dann and Joseph Di Luca, authors of a report to the Department of Justice, Canada titled " Best Practices where there is Family Violence Criminal Law Perspective " recommend that family lawyers representing alleged perpetrators seek permission to discuss the contents of affidavits with defence lawyers before filing affidavits with family courts, presumably both to ensure accuracy and to take into account the potential implications of the contents of the affidavit in the criminal proceeding.
In response to court reluctance to grant interim orders on an ex parte basis, family lawyers may wish to note the reasoning of the Court of Appeal of Manitoba in Baril v. Obelnicki MBCA 40 at paragraphs 88 to 98 and particularly at paragraphs 90 and "the Supreme Court has said that departure from conventional judicial procedures is fully justified in a statute that focuses on alleviating harm to vulnerable persons". Millar , D. Note as well the comments in Baril v.
Obelnicki , MBCA 40 at paragraphs 91 to 98 wherein the appellate court notes that the Supreme Court of Canada has held that a without notice order is appropriate where "delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice is given".
In thinking about whether or not notice is likely to produce harm in a domestic violence context, consider the following:. Section 16 2 of the Divorce Act , R. Section 16 8 states that the sole consideration is the best interests of the child. Although the particulars of best interest factors that must be taken into account vary by province and territory, all family law statutes, set out below, require that family law decisions be made on the basis of the best interests of the child.
Interim custody orders are intended to provide stability in the short-term care of the child until evidence can be assessed and a decision made.
BEFORE THE RETRAINING ORDER HEARING
Consequently, the tendency in family law cases has been to decide these cases on the basis of status quo. As a result children are often left in the custody of the parent with whom they are living. Parents who flee from domestic violence are not always able to take the children with them when they leave. The reasons may include:. Removing children from home and school despite lack of resources for children can result in judicial criticism and in legal disadvantage.
Yet targeted parents who wait to apply for custody until they have the resources to enable them to accommodate children can encounter difficulty obtaining interim custody as a consequence of the status quo best interests of the child presumption. While interim custody orders do not determine final custody and access outcomes, and interim orders can be changed without proof of material change in circumstances e. Criminal Crown prosecutors will also wish to keep in mind that, in a family law context, a criminal provision requiring a perpetrator to remain in the home could have the unintended effect of giving the offender an advantage with respect to interim custody on status quo grounds, particularly if the targeted parent has not been able to remove the children from the family home.
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When making an application for interim custody, family lawyers may wish to bring to the attention of the court the parent-child considerations endorsed by Justice MacDonald in the domestic violence interim custody case N. Consider also the factors outlined by the Family Court of Australia "Matters that may be considered in making interim parenting orders pending a full hearing" in Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged Family courts, Australia :.
In addition to status quo, child safety and protection from harm are central best interests of the child interim custody considerations in domestic violence cases. See, for example: F. Presley , SKQB When a parent acquires custody or primary care of the child by wrongful means for example, by removing the child from the jurisdiction in a non-emergency case, not informing the other parent about the child's whereabouts, by absconding with the child, by making false ex parte claims for custody and civil protection, by setting up the other parent for criminal conviction in connection with resistance violence see Part 5 above , by engaging in domestic violence and forcing the other parent out of the home status quo may have limited weight.
See, for example:. While courts will sometimes intervene on an interim basis to restore the status quo as it was prior to a unilateral decision to relocate: Droit de la famille — , QCCA , note the qualifying comment at paragraph 35 of Jochems v. Jochems , SKCA 81 that the mother's unilateral decision, in that case, had not been "to escape abuse or to seek out better opportunities for" the child. Family lawyers will be attentive to the potential for manipulation of family law proceedings via the criminal court for example the criminalization of resistance violence or minor, isolated acts of domestic violence.
Shaw , ONCJ is a case on point. The mother in this case assaulted the father. The father waited a month to lay charges. Once the mother was in custody, the father made an application on an ex parte basis on a 'without prejudice' basis for interim custody. When the case came up for review, the father claimed interim custody by virtue of status quo. The mother, as a result of criminal proceeding had effectively been barred from the home and from custody of the children.
Justice Pugsley comments on the effects of the criminal proceeding on the family law case:. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of children.
The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refused to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendants' family. Justice Pugsley was critical, in this case, of routine bail provisions and particularly of orders that resulted in the exclusion of a primary care parent from the home thus placing the other parent in a position of superiority in the family law matter for as long as a year, while the criminal matter could be resolved.
See also: E.
See Part 8. Family lawyers, representing survivors of domestic violence, will wish, subject to direction and consent from the client, to ensure, as soon as possible that police and Crown prosecutors are given complete information about the pattern of domestic violence as well as information about: the existence of guns or other weapons, the presence of mental health or substance abuse problems, and the record of the accused's compliance with court orders in the past.
This information is centrally important to police decision-making and Crown submissions in connection with interim release. It helps the police and Crown to assess victim and witness safety, the likelihood of continuing violence, the need for weapons prohibitions and the need for provisions to respond to mental health and substance abuse problems in order to reduce the potential for future offending. In the absence of detailed information, the police and Crown will be unable to propose provisions specific to the particular safety needs of the victim, children and other family members.
In a coercive domestic violence context, when an accused is released by police or a court pending a criminal trial, the risk to victims and children can increase appreciably, particularly in jurisdictions that do not have programs in place to closely supervise bail conditions, and particularly if the survivor of domestic violence is not informed of and was not consulted about appropriate terms and conditions.