Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems

Chapter 4 - Identification of multiple proceedings

Coordination within the court systems is only possible when the various individuals involved – the parties, court staff, judges, lawyers – are aware that there are in fact multiple proceedings or orders and that these are relevant to one another. Often, however, one court does not know about proceedings ongoing in another court.Footnote 203

In some cases, the family members involved may realize that there are connections between what is happening in a criminal proceeding and a family and/or child protection proceeding, and bring this to the attention of the courts. For a variety of reasons, however, this may not occur, particularly where those individuals are unrepresented in some or all of the proceedings:

  • Family members may assume that all parts of the court system are connected to one another, and that there is an automatic sharing of information about cases.
  • Family members may not realize that the proceedings or orders are relevant to one another. For example, an individual who has been assaulted, and whose intimate partner has been charged criminally may not realize that the courts will consider this as a factor in determining the best interests of the child in family or child protection proceedings.
  • Family members may simply not know what is going on in the other proceedings or may not understand sufficiently to be able to provide helpful information. Particularly in a time of crisis, it can be very difficult for people to understand the legal system and its various components.

Having legal representation can have a positive impact on coordination, as this may make it more likely that the presence of multiple proceedings will be brought to the attention of the court. There are challenges even in this situation, however. There may be more than one lawyer involved per party – for example, different lawyers may be acting in the criminal and family proceedings. A child may also have legal representation by a children’s lawyer where the circumstances require their interests to be protected.Footnote 204 In this situation, communication and coordination are required between the lawyers. In other cases, the parties may be represented for some proceedings but not others. In either scenario, the lawyers involved will need to have a sufficient knowledge of the other proceedings to recognize where such communication and coordination are required.

The reality, however, is that large numbers of individuals navigating the court system are unrepresented. Within this context, it is important for the court system to be able to identify where there are multiple proceedings involving the same parties. In an ideal world, this would mean that on an ongoing and systematic basis, computer systems would be able to identify and match cases from different court systems involving some or all of the same parties.

Currently in Canada, there is no jurisdiction which has the technological capacity to do this systematic matching on an ongoing basis. The information management systems in the various courts across the country were not developed with this type of matching in mind. While the databases, case management systems and technological platforms differ among courts in Canada, there are some common challenges to achieving this systematic matching capability.

The records of civil (family, child protection, protection order) and criminal cases are generally housed in different systems. In many cases, the various systems use distinct technological platforms and as a result, it is not technologically possible for the systems to speak to one another. To add an additional complication, it is sometimes the case that provincial and superior court computer databases are not linked. So for example, in some situations there may not be an automatic linking of family law cases between the same parties in both provincial and superior court.Footnote 205

It is possible to do a manual search of the various databases. For example, this could involve taking a list of criminal cases, and individually cross-referencing them by name and date of birth, with family and child protection files. This is, however, very time-consuming and in larger jurisdictions, it may take several hours to search the new cases that appear on a court docket in a single day. In smaller jurisdictions or in specific areas, however, this may be more feasible and there are examples of this happening in Canada. For example, as discussed further below, the Domestic Violence Court in Moncton, New Brunswick relies upon manual searches to link cases.

There are also practical challenges whether the search is done manually or automatically. First, there can be human error in inputting the information; misspelled or incorrect names or dates of birth can hamper searching. It is also not uncommon in the criminal system for an accused to be identified by several aliases and/or dates of birth. Second, if searches are being conducted by keyword, for example “family violence,” cases may be missed, since standard clauses or terms are not always used by the judiciary and legal community. Third, various court registries may record different information about case files. For example, family law cases may be coded based on the names of the parents, in the child protection context, the case may be coded based only on the child’s name. At a minimum, there should be two common identifiers for family members: a name and an additional piece of information such as date of birth. If these same two identifiers are not collected in all court registries, matching becomes more difficult. Fourth, there is the issue of which officials have access to which databases. In some jurisdictions, staff in the provincial court will only have access to provincial court files, and the same will hold true for superior court files. In other cases, access may be limited to the extent that clerks for the family court in one particular location will only have access to the cases in that location and not to cases province-wide. This may also hold true for the criminal system. Where access is restricted in this way, it limits the number of cases that it is possible to search. Finally, it is worth noting that these issues present themselves in the context of a search within one jurisdiction. In situations where family members have crossed provincial or territorial boundaries, there may be multiple proceedings taking place in different jurisdictions. Searches within one jurisdiction will not identify cases from another jurisdiction. Overcoming these technological issues involves substantial investments of financial, technological and human resources.

There are also some privacy issues that must be considered in this context. The sharing of information between court registries will not be an issue in most cases. Particular care, however, needs to be taken to protect privacy interests and to comply with relevant legislative provisions in cases involving youth justice, child protection, as well as in cases where there is a publication ban or sealed court files. This becomes a particular concern where there is the possibility that individuals apart from court staff may have access to files. For more information on privacy considerations see Chapter 7.

4.1 Promising practices

In the absence of automatic matching of cases, there are nonetheless a number of examples of Canadian and international initiatives to help ensure that the various court systems are aware of proceedings or orders from other court systems.

4.1.1 Identifying family violence cases

In addressing the practical challenges associated with identifying where there may be multiple proceedings involving the same parties, one approach is achieving consistent file designation of the relevant cases within each court system. Even if the designated family violence cases are under-inclusive, (which they likely are in family court where litigants may not disclose incidents of family violence), properly coded family violence files and records can facilitate cross-referencing of cases between court systems, and, where required, improve the manual searching of various databases. A number of Canadian jurisdictions flag cases involving family violence in the context of criminal proceedings, and this is of course automatic in domestic violence courts. In contrast, the flagging of cases in the family law system is uncommon.

Systematically flagging family violence cases allows for easy identification and tracking of these cases through the system, as well as the uniform collecting and recording of appropriate information and data. Given the complexity of family violence cases, this requires developing common definitions and directives to ensure appropriate coding, and training of all personnel to help ensure consistency. While flagging of court files may be one approach to promote coordination between systems, on its own, however, it is not sufficient. The information about the cases that are flagged in one system needs to be communicated to the other systems.

4.1.2 Requiring litigants to provide information about related proceedings and orders

In Ontario, several amendments related to information sharing about court orders were brought into effect on March 1st, 2010, when the Children’s Law Reform ActFootnote 206 was amended by the Family Statute Law Amendment Act, 2009.Footnote 207 The amendments were a response to the death of a child in Ontario, who was voluntarily placed by her mother with a friend, who then sought a custody order. The caregiver and her partner were subsequently charged with the child’s murder. The application for custody said very little; the caregiver’s application indicated that the mother had a drug addiction and had lost other children to the Children’s Aid Society (CAS). The record showed that the judge asked the mother a few questions regarding her knowledge of the caregiver, her friend of many years, and about the friend’s partner. The information was given orally in response to questions by the court; there was no sworn evidence.

As of March 1, 2010, anyone (including parents) who applies for custody or access to a child has to complete a parenting affidavit. (An electronic version can be found at www.ontariocourtforms.on.ca under the Family Law Rules—Form 35.1: Affidavit in support of claim for custody or access). Part A of Form 35.1 requires everyone applying for custody or access (including parents) to provide information on:

  • Any aliases or other names used, including maiden name;
  • Whether they have acted as a parent for other children (excluding foster parents);
  • Court cases involving custody or access to a child, or if they have been involved as a caregiver in a child protection case;
  • Whether they have been found guilty of criminal offences without pardon, and whether there are any current criminal charges;
  • Any violence to a spouse, parent of the child, member of the household;
  • Where a child has lived since birth; and
  • A detailed parenting plan.

Part B of the form must be completed by all non-parentsFootnote 208 and requires additional information about:

  • Any children involved in child protection cases;
  • Police records check (similar to a vulnerable sector police check); and
  • Where they have lived in Ontario since they turned 18 or became a parent. This is so that notices can be sent to different CAS agencies throughout the province.

The non-parent applicant is required to sign a form authorizing any CAS in any Ontario jurisdiction where they have lived to report back if they have any records relating to the person (as a caregiver, not as a child) and the dates their files were opened and closed. There are 53 independent CAS in Ontario, which means that several agencies may be asked for confirmation. There is no sharing of records among the CAS and in some areas, there are multiple agencies operating in parallel. For example, if a litigant lives or has lived in Toronto, record requests must be sent to the Children’s Aid Society of Toronto, the Catholic Children’s Aid Society of Toronto, Jewish Family and Children’s Services and Native Child and Family Services.

In cases involving a non-parent applicant for custody, court staff run a report to identify whether the person was involved in other family court cases (this includes child protection cases) in their local court as well as province-wide.

Given the extra information now potentially being filed in court files, including police records check, CAS records, mental health records, etc., a new section was introduced to the Children’s Law Reform ActFootnote 209, to protect people’s privacy. This amendment allows all or part of the normally publicly available court file to be restricted or subject to a non-publication order for anyone referred to in the file (this is known as a section 70 order). The court shall consider the nature and sensitivity of the information when making an order for access to information.

There are a number of benefits associated with the section 35.1 affidavit. First, the affidavit requires the disclosure of personal information that may raise flags and it encourages all parties to articulate a plan. Second, for non-parents, courts will have access to a significant amount of information: the affidavit, a recent record check, reports from any CAS operating in Ontario and a report that identifies family court file matches involving those families. This record check targets the family courts, but can also include criminal courts at the judge’s request. This may happen for example, if there is reason to believe the criminal record check is missing something. As a result of all this information, a parent who consents to the transfer of custody to a non-parent will be able to reassess their position based on a more complete record.

There are, however, certain drawbacks to the requirement for the affidavit. First, the definition of “parent” does not include a same-sex partner who has not adopted the child. While those in this situation can ask for a court declaration that they are a parent, it adds an extra step to the process. There are also some drawbacks related to the process for non-parents. The CAS record search can be cumbersome. Court staff are required to figure out which CAS has jurisdiction, and in a municipality like Toronto, this is not a very straightforward search given the number of different agencies and data systems. Further, the procedure takes time. Police can take up to 60 days for a criminal records check. CAS has 30 days to reply to requests, indicating the existence of any files on that person, the dates of opening and closing and whether there are any outstanding files. If the records check comes back clear, that information goes into an envelope and gets sealed. But if there are existing records, that information is shared with the applicant who then has 20 days to tell the court why they feel the information contained in the file should not be made part of the court record. After those 20 days elapse, the fact that there is a CAS record is shared with the parent authorizing the custody transfer, and is put in the court records. If a party wishes to see the CAS record, they would need to bring a motion for production.

In New Brunswick, section 7 of the Family Services ActFootnote 210 specifies that in all family cases where there is an application for custody, whether under that Act or the Divorce Act,Footnote 211 the court must advise the Minister of Social Development of the case and inquire whether the Minister plans to intervene.

In Quebec, under the Rules of practice of the Superior Court of Québec in family mattersFootnote 212 the party requesting custody or tutorship of a child must attest that the child is not the object of a court decision or pending case, or of an agreement with the Director of Youth Protection, or, if such is the case, must give the details of such decision, case or agreement.

In British Columbia, the Family Law ActFootnote 213 (FLA) requires that anyone applying to court for guardianship of a child (mostly non-parents) will be required to provide an affidavit (under section 51 of the FLA and the court rules) to provide evidence about whether the appointment of this person as guardian is in the best interests of that child. The affidavit must include copies of a child protection records check, protection order registry check and criminal records check.

There are other approaches to having litigants bring forward information about related proceedings contained in civil/domestic family violence legislation. In Manitoba, the Domestic Violence and Stalking Act,Footnote 214requires a person applying for a protection order or a prevention order to provide the details of any order or agreement to which the applicant and respondent are parties, including those for custody or access, and other protection and prevention orders. The Australian Family Law Act 1975 requires a party to a proceeding for a parenting order to inform the court about family violence orders (civil protection orders) relevant to the child or a member of a child’s family.Footnote 215 Similarly, a party to a proceeding who is aware that a child, who is the subject of an application for a parenting order or another child of that family, is under the care of a person pursuant to child welfare laws, must inform the court. Further, a party to a proceeding must inform the court if they are aware of any notification or report to a child protection agency or investigation by a child protection agency in relation to either a child who is the subject of a parenting order application, or another child of the child’s family.Footnote 216

4.1.3 Requirement on court to inquire about family violence

In addition to the requirement on parties to bring forward information about family violence orders as well as child protection orders, reports and investigations, the Australian Family Law Act, 1975 also requires the courts to inquire about the existence of family violence or abuse. In child-related proceedings, the court is required to ask each party to the proceedings whether they have any concerns about family violence or abuse, either in respect of themselves or the child.Footnote 217 The intent of these provisions is to encourage the disclosure of information about family violence or abuse so that the courts can make parenting arrangements that are in the best interests of the child and provide for safety. In response to these inquiries by the court, family members may bring other relevant proceedings or orders to the attention of the court.

4.1.4 Court coordinators

As noted above, the Domestic Violence Court in Moncton, New Brunswick has made connections with the family courts to ensure that relevant cases are matched. The Moncton Domestic Violence Court is the first of its kind east of Ontario. Although the court is a Provincial Court dealing solely with criminal matters, it has successfully bridged an information-sharing gap between the criminal and family justice systems.

A court coordinator collects information from Family Division court records, including both child protection matters (Department of Social Development) and private family law matters. The information is shared with the Crown prosecutor prior to the Domestic Violence Court sessions. Immediate key partners of the Domestic Violence Court consult on a regular basis such as police, Crown prosecutors, legal aid, probation and a Victim Services coordinator. The court coordinator and the Domestic Violence Court stenographer distribute a weekly Domestic Violence Court docket by email to immediate key partners (such as the RCMP, Crown attorney’s office, probation staff, Victim Services and the Department of Social Development). Child protection services use this information to flag cases of interest appearing at the Domestic Violence Court. To prevent the issuing of conflicting court orders between the criminal and family justice system, the coordinator consults the family court information system on a weekly basis to cross-reference potential overlapping domestic violence cases, by using identifying information of offenders and victims scheduled to appear in Domestic Violence Court each week. If documents in the Family Justice file indicate that there is a child custody and access matter, copies of court orders are provided to the Crown prosecutor. The Domestic Violence Court coordinator is informed by child protection workers of their involvement in the file and in response, the coordinator provides the status of domestic violence court files to the child protection workers and the Victim Services coordinators.

In addition, the Domestic Violence Court coordinator’s role includes distributing information about provincial court orders to victims of domestic violence and child protection social workers. One factor which reportedly enhances the bridging of information exchanges between key stakeholders is that there is a designated staff person in each sector dedicated to domestic violence files. Information-sharing protocols developed between RCMP and Victim Services enhance victims’ safety at the Domestic Violence Court. Furthermore, Victim Services coordinators can notify victims of domestic violence crimes who register for the service, about the movement of offenders. In Saskatchewan, the domestic violence court coordinators connect with Child Protection prior to court dates and Child Protection is an active participant in the Steering Committees for each court.

4.1.5 Technological innovations

Since 2010, the province of New Brunswick has been gradually implementing a complete electronic court case management system for most levels of court across the province, namely the Court of Queen's Bench, including Family Division and Trial Divisions (civil matters only) and the Probate, Bankruptcy, and Small Claims courts. The new system is called NOTA. An existing criminal justice database called Justice Information Services New Brunswick (JISNB) is being used by Court Services staff for the purpose of recording information related to clients and court proceedings involving the provincial criminal justice system, as well as selected case information for Court of Queen's Bench criminal trials (superior court).

Ongoing developments of NOTA have included: document production and management, case history, scheduling (including assignment of judiciary and dockets for sheriffs, Crown prosecutors and court stenographers), some disposition information, and an electronic index book. The final phase of implementation of NOTA will include advanced public access so that with a case number and a PIN, any plaintiff, applicant, petitioner, respondent, witness or juror can access information about their own case, particularly their schedule and requirements.

With respect to the coordination between criminal and civil systems, consideration of the feasibility of integrating the criminal database electronically with NOTA is being explored, which, if implemented, would enable staff to conduct manual searches and to cross-reference connected cases by linking the cases (but not the parties) within the system. Court Services staff can currently search any non criminal case in NOTA by party name, region, and/or type of case. If the case has a scheduled court appearance, they can also search by lawyer name.

Other provinces as well are looking at technological enhancements. For example, Prince Edward Island has a committee examining the feasibility of establishing a database of criminal and family law orders.

Internationally there are also some good examples. The State of New York has an Automatic Case Identification System (ACIS). This system reads and matches cases from the criminal and family law databases on a daily basis. The family database includes civil protection cases, custody and visitation cases, child support cases, and in about half of the areas of the state, child protection matters. After the automatic matching is complete, a clerk will go through the list to verify it. Once a match is confirmed, it will be assigned a family number which is used to track the family for the purpose of all proceedings.

4.1.6 Other

Other approaches are also possible to facilitate awareness by courts of related cases. For example, when the Erie County Integrated Domestic Violence (IDV) Court, which hears both family and criminal cases, was introduced in Erie County, New York, in December 2003, as part of the approach to identifying IDV Court eligible cases, police in Buffalo began a practice of asking parties involved in misdemeanour family violence cases whether they had any ongoing divorce or family cases. Subsequently, the police would put an IDV Court transfer form in the case file to alert staff at the criminal court and of the Buffalo City Domestic Violence Court to check for related family or matrimonial cases.

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