Interface between family and criminal court: Non-communication of Risk in IPV Cases: A Risky Disconnect? Canadian Observatory Conference October 20-22, Fredericton, N.B. The Honourable Donna Martinson & Dr. Margaret Jackson School of Criminology & The FREDA Centre Simon Fraser University, Vancouver, BC
Presentation Outline Background/Historical Context The BC Family Law Act (FLA) [SBC 2013] RISK and RISK Assessment Tools Methodology Methodology, continued, Research Questions Preliminary Findings Policy and Practice Interviews Preliminary Findings Caselaw Discussion
Background/Context Five key factors informing study: 1. General Awareness that the silos approach to multiple proceedings is problematic. 2. 2012 SFU Consultation identifying many serious safety concerns for women and children, Lack of knowledge about other proceedings and orders
Background/Context (continued) Criminal courts order no contact, child protection authorities say the children will be apprehended if there is contact and family court focusses on the view that contact is in the best interests of children and grants unsupervised access. Little or no coordination re the length of time an order is in effect, leaving gaps.
Background/Context (continued) 3. In 2013 B.C. Family Law Act was enacted, requiring judges and parents to consider: Any civil or criminal proceeding relevant to the child s safety, security and well-being. 4. The Federal Provincial/Territorial Working Group Report 5. Major Access to Justice Reports advocating for evidence based research
Background/Context (continued) The BC Family Law Act (FLA) [SBC 2011] March 18, 2013 CHAPTER 25 Best interests of child 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. 2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member
Background, continued) The BC Family Law Act (FLA) [SBC 2011] March 18, 2013 CHAPTER 25 Assessing family violence 38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following: the nature of seriousness of the family violence; how recently the family violence occurred; the frequency of the family violence;
Background (continued) The BC Family Law Act (FLA) [SBC 2011] March 18, 2013 CHAPTER 25 2. Other Civil or Criminal Proceedings Parties in making an agreement and the Court must consider any civil or criminal proceedings relevant to the child s safety, security or well-being: s. 37(2)(j). The obligation applies not only to ongoing proceedings but also to relevant past proceedings as it includes any relevant proceeding.
RISK:Key Factors for Risk Assessment Recent separation of two partners Power and control over partner issues Past/ongoing abuse prior to present incident Alcohol/drug abuse/mental health problems Complainant s perception of personal safety and future violence Lack of support systems family and community Choking (A relevant case here is R. v. Bleile (2000) C.R. 31 (5th), Alta. Q.B.)
RISK (continued) Examples of Risk Assessment Tools for DV/IPV situations ODARA -Ontario B-Safer BC, New Brunswick Domestic Violence Investigation Guide BC (der. from Alb.) Spot the Signs - Coupal SARA VRAG PCL-R HCR-20 Dangerous Scale -Jacqueline Campbell
Methodology Nature and Purpose: Exploratory study using qualitative methods Looks at: Is information about risk available? If so how? If so how?
Methodology (continued) Individual interviews with: Family lawyers Crown counsel Defence counsel Round table discussion with Some judges From the B.C. Provincial Court and Supreme Court With varied family and criminal experience Analysing pre-and-post Family Law Act Cases
Methodology (Continued) Research Questions 1. In Intimate Partner Violence (IPV) cases in British Columbia, is information about the risk of reoffending by the abuser shared between the family court and criminal court? 2. In relevant cases, such as those involving divorce/custody and access, are family court judges in British Columbia asking about or being made aware of the critical risk factors in IPV cases apart from any information coming from the criminal court? 3. What form does risk information take: from risk instruments/experts/court actors own interpretation of risk? 4. What barriers for the sharing of such risk information between the two courts currently exist in BC? 5. What recommendations for better communication protocols between the two courts on IPV cases emerge from the study?
Preliminary Findings Policies and Practices of BC Crown Counsel Other interviews
Preliminary Findings (continued) Caselaw A small sampling of cases was undertaken, both pre- and post-fla, which speak to particular issues with concurrent proceedings and risk assessment First, none of the studied cases decided prior to the FLA mentioned concurrent proceedings. In a post-fla case, S.H. v. R.G. 2013 114, the Court noted in its section 37(2) analysis that there was an outstanding child protection case: More commonly, courts referenced past proceedings.
Preliminary Findings (continued) Caselaw In the post-fla cases, the issue of interpersonal violence was raised more often than in pre-fla cases, probably attributable to the FLA coming into force. in the post-fla case, P v. S.S. 2013 BCPC 81, at para 156, the court decided that since there was no evidence of physical violence directed to [the child], the risk posed by the violent parties would not greatly influence their decisions.
Preliminary Findings (continued) Caselaw Dawson v. Dawson 2014 BCSC 44 at paras 44-45, the court relied principally on its own interpretation of at-risk family member as it appears in Part 9 of the FLA: The fact that there has been an act of physical family violence, even a single act of physical family violence, may provide a sufficient basis to conclude that family violence is likely to occur in the future. Although the passage of time may serve to reduce the probative force of such evidence, to the extent the circumstances giving rise to the earlier act of violence remain at large, the predictive quality of that earlier act may not be diminished with the passage of time. Moreover, it seems to me that when assessing the likely threshold set out in s. 183(2)(a) regard should be had to the gravity of the harm that might follow from an act of physical family violence.
Preliminary Findings (continued) Caselaw In summary, the preliminary findings suggest that there still remain inaccurate judicial beliefs about the fact that intimate partner violence against women does negatively impacting children who witness the violence, an unawareness of the realities behind why women may remain with the abusive partner, and some general victim blaming responses to women. On the other hand, there does appear to be more attention paid in judicial decisions (post-fla cases) to the impact upon these cases of holding multiple proceedings, to the need to consider not only the issue of the existence of violence in the relationship, but to the risk factors (likelihoods) of violence continuing in the that relationship.
Discussion