Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems
(Criminal, family, child protection)
A Family Law, Domestic Violence Perspective
Part 10: Court Connected Services, Best Practices
10.1 Domestic Violence Intervention Programs: Do the Programs Stop Domestic Violence?
All legal systems (criminal, child protection, and family) make use of the same services in domestic violence cases. Enhanced consultation and collaboration among lawyers and service-providers across sectors could help to make more effective use of such services by keeping in mind the literature on the effectiveness of such services and by ensuring that the services are operating in a unified fashion rather than at cross purposes.
The effectiveness of domestic violence intervention programs is not firmly established. The programs help some perpetrators, particularly those whose domestic violence is not firmly entrenched, but not others.Footnote 159 It cannot be assumed, therefore, that completion of a domestic violence program guarantees safety.
Nonetheless, intervention programs are certainly known to do more good than harm. At the very least, the programs provide a monitoring function while the perpetrator is in attendance.Footnote 160 Specialized domestic violence intervention programs that deal with domestic violator parenting problems are beginning to show some degree of promise.Footnote 161
When reading evaluation research it is important to keep in mind that improved attitudes and understandings of the impact of domestic violence on children do not necessarily translate into changed behaviour. Look for evaluation studies that contain behaviour change data, preferably longitudinal data, derived from the family members who were subjected to the domestic violence (as well as police records).
When interpreting the potential value of directing a client to a domestic violence intervention program, Crown, defense and family lawyers should consider the accused's record of attendance and participation in such programs in the past. Has the perpetrator attended such programs in the past? Did the perpetrator attend regularly and benefit from the program? Did the benefit translate into changed behaviour? Have the circumstances changed such that the perpetrator is likely to benefit now? In connection with interpreting the impact of participation on family safety: Has the perpetrator attended regularly? Does the perpetrator demonstrate acceptance of responsibility and a changed attitude toward domestic violence? Has the change in attitude resulted in changed behaviour?
Keep in mind that referrals to intervention programs should give the intervention service an opportunity to assess the perpetrator's suitability for the particular program. Domestic violence intervention programs differ. A program can be suitable for some perpetrators, not for others. Crown, family and child protection lawyers will wish to obtain information, when available, about the effectiveness of the domestic violence intervention program. Ideally, such programs should be vetted by domestic violence experts to ensure that protocols are in place to prevent the release of confidential information that could affect 'victim' or child safety. One should also ensure that the program being recommended or ordered addresses the particular type of domestic violence involved in the case. For example, domestic violators who engage in sexual violence require specialized programs to deal with sexual abuse;Footnote 162 perpetrators who have children require specialized content on parenting; perpetrators who are members of particular cultural communities require services that are culturally appropriate. Child protection authorities, Crown, and family lawyers will also wish to ensure that domestic violence interventions are combined with other interventions and treatments to address risk factors pertinent to each individual case (drug or alcohol misuse, mental health problems, special 'victim' or child vulnerability, lack of access to safe housing, language barriers, and barriers resulting from sexual orientation, lack of resources, immigration status, disability, or cultural group).
In addition, family lawyers will wish to consider the implications of clients participating in such services - in terms of confidentiality, disclosure, and court expectations of adult and child safety - in connection with the potential use of this information in other proceedings (child protection and criminal).
Non-attendance and dropping out of domestic violence intervention are associated, empirically, with increasing risk of continuing domestic violence. Consequently, best-practice standards for domestic violence intervention programs recommend that such programs prioritize 'victim' safety and have policies in place to ensure the timely reporting of:
- breaches of no contact orders
- increasing or changing risk
- child abuse, and
- non- attendance (failure to attend sessions, failure to complete)
Perpetrators may be asked to consent to the release of such information as a condition of providing the intervention service.Footnote 163 Given the documented connections between non-attendance and increasing risk, family lawyers representing 'victims' will wish to ensure that the intervention program being used in the case adheres to such best-practice standards and that the service has policies in place to ensure prompt notification of pertinent authorities as well as the targeted party in these circumstances. Family lawyers representing alleged perpetrators should check to see if this type of policy is in place and, if so, should discuss with clients the implications of the policies and any associated consent forms in connection with the potential use of information in criminal as well as in family law and child protection proceedings.
In the absence of mandatory attendance and monitoring, drop-out rates are high. The ideal is professional (or community) monitoring and review of the domestic violator's participation and progress. Given that these programs cannot provide assurances of safety, evidence of an established pattern of changed behaviour has more value in a family law and child protection context than proof of successful program completion.Footnote 164 One needs to look for changed behaviour. See, for example Westhaver v. Howard (2007), 260 N.S.R. (2d) 117, 2007 NSSC 357; Aguilera v. Reid, 2006 CanLII 6196 (ON S.C.); T.R. v. R.T., 2006 ONCJ 173.
10.2 Contraindicated Intervention: Anger Management
While debate continues as to whether or not there is value in teaching anger management as a component of specialized domestic violence intervention, anger management by itself is not recommended in coercive domestic-violence cases.Footnote 165
The problem according to the literature is that anger management does not focus on the underlying causes of domestic violence; worse, anger management programs can serve to enhance control skills. More particularly such programs are said to:
- have limited proven effect
- lack standards to ensure those offering such programs have specialized domestic violence expertise
- offer a false sense of hope and safety
- focus attention on intimate partner behaviours that trigger anger (to enable the violator to learn how to control the anger response) instead of focusing attention on violator perceptions and actions that give rise to domestic violence
- fail to engage perpetrators in acceptance of responsibility for violence, and
- teach perpetrators new control skills when the goal in domestic violence cases is learning not to control.
A number of jurisdictions in the United States recommend that anger management not be used as a response to domestic violence.Footnote 166
10.3 Contraindicated: Parent Education
Parent education programs that are not specifically designed to respond to domestic violence may offer parenting support and assistance to targeted parents but are unlikely to offer much help to perpetrators of coercive domestic violence. Specialized programs targeting parenting patterns specific to domestic violence contexts are needed.
10.4 Supervised Child Access Centres: Choice and Referral
Detailed discussion of the circumstances in which supervision of child access is warranted is beyond the scope of this report. Nonetheless a few general comments pertinent to cross-sector decisions are warranted.
Subject to the particulars of each case, as a general rule, in most cases of coercive domestic violence (see Parts 5, 6 and 7 above) supervision of access is recommended until safety can be assessed and assured. In cases of isolated minor violence or resistance violence, on the other hand supervision may be unnecessary. The Court of Appeal for Québec outlines some of the circumstances that warrant supervision of access in Droit de la famille - 072263, 2007 QCCA 1253 (CanLII) as does the Nova Scotia Court of Appeal in Slawter v. Bellefontaine, 2012 NSCA 48 (CanLII).
Access of any type (including supervised access) may not be appropriate when:
- access offers no benefit to the child
- there is a high risk of danger to the child, to the targeted parent or to supervision staff or
- there is a potential for lethal outcome (see Part 7 above).
In cases involving severe, repetitive, coercive violence, or the potential for lethal outcome, suspension of access may be the only safe option until safety can be assured.
Consider the security and safety measures in place at the supervised access centre. Are the measures adequate to address the circumstances of the case? Has the centre adopted security measures, employee training standards, forms authorizing release of perpetrator information, procedures to protect adult and child safety, as well as special accountability forms and procedures recommended for supervision of access in domestic violence cases?Footnote 167 Does the centre have the expertise and capacity needed in order to:
- Distinguish types of domestic violence and match the level of supervision to the type of domestic violence and the level of risk
- Provide therapeutic access designed to protect the children from parenting problems associated with coercive domestic violence cases and to help children overcome fear and harm from domestic violence
- Educate perpetrators on the effects of domestic violence on children
- Ascertain changing risk and act quickly to protect targeted parents and children
- Prevent child abduction
- Enable the perpetrator to respond appropriately to the safety and developmental needs of the children?
In response to the possibility that a perpetrator may not be a suitable candidate for a particular supervision of access program (for reasons similar to those mentioned in connection with domestic violence intervention programs i.e. language,Footnote 168 culture, disability, continuing mental health or addiction problems, gender, sexual orientation, type or level of violence, level of danger, inappropriate parenting, or child safety concerns), problems can be avoided by:
- Ensuring that the named supervisor or agency has consented to the supervision (after being fully informed about the type and frequency of the domestic violence and after having had a chance to screen the candidate) and
- Ensuring that, if the supervisor determines that the perpetrator is not a suitable candidate for the service, specific directions have been given as to when and to whom the matter is to be redirected for reassessment and potential modification of the terms of parent-child contact
Supervisors of access should be given copies of all court orders and rulings relating to the domestic violence as well as information pertinent to risk. In Dhillon v. Dhillon (2001), 22 R.F.L. (5th) 269, 2001 YKSC 543, for example, Justice Veale took the extra precaution of ordering, as a condition of any future supervised access, that
"the proposed supervisor would have to be informed about my findings of physical and psychological abuse. So informed, the supervisor should be required to keep the child in line of sight and hearing at all times." On the other hand, where risk is low, all that may be required is supervision of the exchange of the children.
In sum, family and criminal lawyers (defence and Crown) involved in the case are advised to work with any child protection authorities involved, ideally in collaboration with domestic violence and child development experts, to design specific directions on the frequency and type of supervision required.
10.4.1 Length of Supervision
Generally, supervision of access has been viewed in family law cases as a short-term option for stabilization or for restoration of a positive relationship between the parent and child. It is not considered a long-term solution to deficient parenting, particularly when access offers no benefit to the child. Nonetheless, while many courts have expressed reluctance to grant long-term supervised access, the Ontario Court of Appeal has indicated a willingness to endorse supervision of access for longer durations, in exceptional cases, where such orders are in the best interests of the child and other options are not feasible: C.A.M. v. D.M., 2003 CanLII 18880 (ON C.A.); Merkand v. Merkand, 2006 CanLII 3888 (ONCA), application for leave to appeal to Supreme Court of Canada dismissed: Irshad Merkand v. Tallat Merkand, 2006 CanLII 18512 (S.C.C.). See also Slawter v. Bellefontaine, 2012 NSCA 48 and Justice Blishen's informative discussion of this issue in V.S.J. v. L.J.G., 2004 CanLII 17126 (ON S.C.).
10.4.2 Choice of Supervision Centre: When Options are Limited
For obvious reasons, supervision of access by family members related to or romantically involved with the perpetrator should be avoided. The optimum practice is professional supervision, preferably by an access supervision centre that has special programming in place for domestic violence cases.
If the only available option is supervision by a non-professional acceptable to the targeted parent, it is particularly important for family and criminal lawyers working with child protection authorities, preferably in consultation with a domestic violence expert, to clarify, in detail, expectations with respect to issues such as:
- Child, adult, and supervisor safety
- Supervisory role
- Degree and type of supervision required
- Policies if access appointments are missed (by the perpetrator or the 'victim')
- Policies if the supervisor is not available
- Confidentiality (and limits thereof)
- Information exchange policies
- Consent forms relating to release of information (specifying to whom the information is to be released) in the event of increasing risk, breaches of no contact orders, or concerns about parenting
- Reporting obligations, for example, to child protection authorities, to experts, to the other party, or to the court
- Medication and health issues
- Record keeping
- Referrals to other agencies
- Options and procedures with respect to cancelling supervision.
Access centres are far from uniform in nature or quality. Many were originally designed for use in child protection matters where family reunification is a goal. Some offer one-on-one individual monitoring and supervision; others offer a large room where multiple parties are supervised by a single supervisor. In some services the supervisor is present in the same room; in others the supervisor may be in a separate room with a monitor. Most supervision services, including some of the supervised access centres utilized by child protection authorities, utilize lay volunteers. Lay volunteers will often lack specialized domestic violence training, an understanding of parenting issues specific to the domestic violence context, and professional accreditation.
One should seek assurances of the quality of supervision, including checking the education of staff and the implementation of security policies. When specialized supervision is lacking in a community, lawyers and child protection authorities could consider working together with domestic violence experts and supervised access centres to educate and build capacity and to create special standards, processes, and forms for use in domestic violence cases.Footnote 169
10.4.3 Cautionary Comments on Evidence from Supervisors of Access
Family lawyers will want to keep in mind that few supervisors of access are domestic violence or child development experts. Thus, while supervisors of access may testify on a lay basis as to observations during supervision, supervisory evidence is not dependable for evaluation of the parent-child relationship or to assess parenting.Footnote 170 For example, in Kanwar v Kanwar, 2010 BCCA 407 the court held that the success of supervised access was not proof that concerns about unsupervised access were no longer present. Perpetrators are known to behave differently in public from the way they behave in private. The fact that a perpetrator is able to perform effectively as a parent under supervision is helpful information but does not by itself predict how the same perpetrator will behave when access is no longer monitored. See, for example, the concerns of the Manitoba Court of Appeal in Weiten v. Adair (2001), 21 R.F.L. (5th) 239, (2001), 156 Man. R. (2d) 308, 2001 MBCA 128. Refer as well to N. Stern & K. Oehme (2002) for an informative discussion of problematic evidence issues associated with admissibility and use of evidence from supervisors of access in domestic violence cases.Footnote 171
10.5 Programs for Children
While some children are more resilient than others (particularly those fortunate enough to have strong family support networks) and thus may recover spontaneously from exposure to coercive domestic violence, many children will benefit from participation in special domestic violence counseling programs for children. Indeed some children will require intensive, specialized therapeutic intervention for clinical problems associated with exposure. Yet, despite the obvious need, special programs for children have been rather late in coming. Thus evaluation research is limited.Footnote 172 Nonetheless a growing number of evaluations, guides and standards, some of them listed in the footnote,Footnote 173 offer useful guidance to lawyers, child protection authorities and service providers when choosing or establishing such services.
Part 11: Conclusions
11.1 Specialized Domestic Violence Courts
Most collaborative initiatives in the domestic violence field have occurred in connection with specialized criminal courts. Davies, Dann and Di Luca, "Best Practices where there is Family Violence (Criminal Law Perspective)" document in a paper for the Department of Justice a new combined family / criminal court initiative in Toronto. Combined courts models should help to overcome some of the problems discussed here at the intersection of family, child protection and criminal cases, particularly as judges, Crown, defense, and family lawyers associated with such courts acquire specialized expertise in the domestic and family violence fields.
Nonetheless there are also advantages of separate courts. Some authors caution that integrated courts could compromise some of the specialization, checks and balances, and thus protections offered by divided court processes.Footnote 174 Thus another model that may be worthy of consideration is a coordinated court model wherein the courts would still specialize in family, criminal and or child protection matters and these matters would still be heard by different judges but the proceedings, evidence, and court-related services could be co-ordinated by a court coordinator, advised by a cross-sector community family violence committee, to offer advice from time to time in connection with management of high risk cases and procedural reform.
11.2 Concluding Comments: Responding to Challenge
The social, economic, and personal costs of domestic violence challenge us to search for timely, long-lasting, effective solutions. Every time our legal systems fail families, the costs multiply. While the causes and solutions to domestic violence - particularly the need for the legal system to respond to domestic violence in a seamless, coordinated fashion - are reasonably clear, and have been reasonably clear for some time, achieving solutions has remained an elusive goal. Cross disciplinary and cross sector legal complexities continue to present formidable obstacles. Yet much can be done to overcome obstacles through cross-legal-system partnerships and collaboration at the intersection of court systems. It is hoped that this manual will encourage and support cross-sector collaboration for the end cause of keeping Canadian families and children safe.
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