Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Annex 4: Family violence responses by jurisdiction
The Criminal Code sets out criminal offences applicable throughout Canada. Many offences are relevant in family violence cases including assault, sexual assault, uttering threats, forcible confinement, criminal harassment, destruction of property, homicide and abduction of a child. It is an aggravating factor for sentencing purposes when the offence involved the abuse of an offender’s spouse or child or of a position of trust or authority (section 718.2).
Criminal protection or no-contact orders may be relevant in cases of family violence. Generally, these protective orders arise in the context of:
- Release, no-contact or bail orders (sections 497-524);
- Recognizance orders or peace bonds (section 810); or
- Probation and non-communication orders following conviction (sections 731-732.1, 742.3, 743.21).
The procedural provisions of the Criminal Code also apply to the protection of complainants and witnesses (including children) in family violence proceedings. These include:
- Allowance of a support person for a child when testifying (sub-section 486.1(1));
- Allowance of a support person for any witness, including the complainant (sub-section 486.1(2));
- Allowance for testimony to be given outside the courtroom to prevent contact with the offender (for children) (sub-section 486.2(1));
- Allowance for testimony to be given outside the courtroom to prevent contact with the offender (other, adult witnesses) (sub-section 486.2(2));
- Preventing unrepresented offender from cross examining a child (sub-section 486.3(1));
- Preventing unrepresented offender from cross examining any other adult witness, including the complainant (sub-section 486.3(2));
- Detained, pending bail application, no contact order (section 516);
- Detained, following bail application, no contact order (sub-section 515(12));
- Sentenced to custody, no contact order (section 743.21)
Family/Domestic Violence Legislation
Civil family violence legislation is a matter of provincial/territorial jurisdiction. However, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves,SC 2013, c 20, addresses issues relating to family real property on reserve. The federal provisional rules in the Act apply until a First Nation has such laws in force. In situations of family violence, emergency protection orders can be obtained from a designated judge. Such orders can grant exclusive possession of the family home for up to 90 days plus extension (sections 16-19).
Family Law Provisions Related to Family Violence
Provincial and territorial family laws apply to situations involving intact families, unmarried couples who separate and married couples who separate but do not pursue a divorce. The federal Divorce Act applies across Canada when married couples seek to divorce. The Divorce Act provides that decisions related to custody and access must be made in the best interests of the child (sub-section 16(8)). Although there is no list of best interests criteria in the Act, one of the factors that the courts will consider is whether there has been family violence.
Canada is a party to a number of international human rights treaties that have provisions of relevance to family violence, namely:
- UN Convention on the Rights of the Child, a public international law treatywhich provides that the best interests of the child shall be a primary consideration in all actions concerning children (Article 3); that the principle that both parents have common responsibilities, rights and duties with respect to raising their children (Articles 5 & 18) and; that a child has a right to protection from neglect, violence and abuse (Article 19).
- UN Convention on the Elimination of All Forms of Discrimination Against Women, a public international law treatywhich provides that women and men have the same rights and responsibilities as parents and in family law matters (Article 16).
- Hague Convention on the Civil Aspects of International Child Abduction, a private international law treaty to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 13 provides an exception where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The provinces have jurisdiction to investigate Criminal Code offences as well as offences under provincial legislation and municipal by-laws. Ontario and Quebec have established their own provincial police forces. The other provinces have entered into agreements with the Royal Canadian Mounted Police (RCMP) to contract their services. The RCMP is the police force in the territories. Policing in larger municipalities is provided either by the provincial police or by separate municipal forces.
The RCMP Violence in Relationships policy directs units to participate in multi-agency community-based initiatives or programs to reduce the incidence of violence in relationships, improve public awareness, and develop protocols for responding to violence in relationships. Protocols for responding to violence in relationships must be sensitive, respectful and responsive to the cultural needs and traditions of communities. Each RCMP Division is responsible for developing protocols in responding to violence in relationships. Within this policy, if a child has been exposed to an incident of violence in a relationship, members are directed to notify the appropriate provincial or territorial child welfare services agency. When an accused or suspect is to be released from custody, every effort must be made to notify the victim in advance of the release and of the conditions. The RCMP also maintains policy on Parental/Child Abductions, Criminal Harassment and Missing Persons.
The onus is on the police to lay or recommend charges of a Criminal Code offence or an offence that has been committed under provincial or territorial family violence legislation. The primary purpose of swift police intervention is to protect victims of violence in relationships.
The RCMP recognizes victim services to be an integral component of the continuum of comprehensive police services. Timely involvement of victim services is critical to the preservation of peace and prevention of crime. It is an integral part of the prevention and reduction of victimization and potential re-victimization and is an obligation of the RCMP.
The RCMP offers Evidence-based, Risk-focused Domestic Violence Investigations training to encourage officers to take a proactive and collaborative approach to promoting and managing victim safety. The course was developed by the British Columbia Ministry of Public Safety and Solicitor General in collaboration with British Columbia police, Crown Counsel, Victim Services, Community Corrections, and the Ministry of Children and Family Development. The RCMP modified the content to create an e-learning course that can be used in each province and territory and can be tailored to meet their unique needs.
The prosecution of Criminal Code offences as well as provincial penal statutes is a matter of provincial jurisdiction. The Public Prosecution Services of Canada prosecutes Criminal Code offences in the territories. For the relevant policies, see the territorial annexes.
Child protection legislation is a matter of provincial/territorial jurisdiction. Child protection services for First Nation children and families are provided in accordance with the legislation and standards of the province or territory of residence, and funded by Aboriginal Affairs and Northern Development Canada’s First Nations Child and Family Services (FNCFS).
The National Office for Victims (NOV) is a single, national point of contact for victims who have concerns about offenders and questions about the federal correction system and the Canadian justice system. It also provides members of the criminal justice system, the general public and staff of Public Safety Canada, the Correctional Service of Canada (CSC) and the Parole Board of Canada (PBC) with information and input about victims’ issues.
The Restorative Justice Division of CSC provides victim-offender mediation services to victims of crime through the Restorative Opportunities Program.
The Federal government allocates $11.6 million annually to this grants and contributions fund for such initiatives as funding to victims and a support person to travel to attend Parole Board hearings with the victims; funding for Canadians victims abroad; funding for NGOs to develop or implement projects to increase awareness of victim issues or services to victims; funding to enhance culturally sensitive victims services for families of missing and murdered Aboriginal women.
A major portion of the Victims Fund is used to establish or enhance Child Advocacy Centres (CAC) across Canada. CACs adopt a seamless, coordinated and collaborative approach to helping child and youth victims of crime to minimize system-induced trauma by providing services to young victims and their families in child-friendly settings. In 2011-2012, a total of 11 CACs across Canada were funded. In Budget 2012, the Government doubled the amount of money available for CACs.
National Victims of Crime Awareness Week
The National Victims of Crime Awareness Week (NVCAW) is held in April every year, the goal is to raise awareness about issues facing victims of crime and the services, programs and laws in place to help victims and their families.
Just prior to NVCAW 2012, the Prime Minister announced a new federal income support for parents of missing or murdered children to provide $350 per week for up to 35 weeks. During NVCAW 2012, the Minister of Justice announced a further $7 million over 5 years in funding for the Victims Fund. This new funding will be used to support CACs and provide time-limited operational funding to victim-serving non-governmental organisations.
Under the Family Violence Initiative, the Government of Canada provides financial assistance for the repair, rehabilitation and improvement of existing shelters for women and their children, youth and men who are victims of family violence. Funding may be used in areas such as security, access for persons with disabilities, and in play areas. The assistance provides for the acquisition or construction of new shelters and second stage housing where needed.
Off reserve, financial assistance for shelters for victims of family violence flows through bilateral agreements with provinces and territories for the Investment in Affordable Housing. Under these agreements, provinces and territories cost match and deliver the federal investment. In the one jurisdiction where such an agreement is not in place, federal funding is delivered through the Shelter Enhancement Program. From 2006 to 2011, over $68 million was committed toward shelters for victims of family violence either through federal delivery or through provincial and territorial mechanisms.
In addition, for the same period, the Government of Canada provided close to $7 million in federal funding for shelters for victims of family violence in First Nations communities.
Health Canada’s Labrador Innu Health Program funds two Innu communities in Labrador (Natuashish and Sheshatshiu) to support their community-led healing initiatives. As part of this program, Health Canada and Aboriginal Affairs and Northern Development Canada jointly fund safe houses in the two Innu communities. The safe houses operate youth intervention and mental health programming, including culturally appropriate health promotion and prevention activities for community members to increase knowledge of family violence, parenting, crisis intervention, etc. The safe house in Natuashish also doubles as the community’s women’s shelter. Through other components of the Program, training is available to program staff and wellness education to community members to build knowledge on mental wellness topics including family violence and child abuse.
Aboriginal Affairs and Northern Development Canada’s Family Violence Prevention Program provides funding to assist First Nations in providing access to family violence shelter services and prevention activities to women, children and families ordinarily resident on-reserve. There are two components to the program: operational funding for shelters; and proposal-based prevention projects.
Economic Action Plan 2012 committed funding of $11.9 million over one year for the Family Violence Prevention Program, allowing the Department to continue to offer in 2012-2013 its programming at a funding level of $30.4 million similar to previous years. This investment contributes to enhanced safety and security of on-reserve residents, particularly women and children.
Abusive Partner Programs
The Correctional Service Canada (CSC) is legally mandated to provide programs and services that address offenders’ criminal behaviour and contribute to their successful transition into the community. At the beginning of every new federal sentence, offenders are assessed on a variety of areas to determine the types of programming he or she requires in order to reduce the risk of re-offending and/or promote successful reintegration.
Correctional programs focus on risk factors that contribute to criminal behaviour and aim to reduce re-offending by helping offenders make positive changes. Specific family violence prevention programs offered by CSC are comprised of the following:
The High Intensity Family Violence Prevention Program and the Moderate Intensity Family Violence Prevention Program are designed to reduce offender violence and abuse toward intimate partners and family members by enhancing offender motivation, establishing personal insight, providing information on parenting and healthy non-abusive relationships, and assisting in skill-building related to thoughts, emotions and positive social behaviour.
The High Intensity Aboriginal Family Violence Prevention Program addresses the specific needs of Aboriginal offenders through the provision of spiritual and holistic cultural teachings, ceremonial components involving Aboriginal Elders, and through recognizing the realities of Aboriginal social history. The program is designed to help offenders develop insight, change beliefs that underlie abuse and violence, practice problem-solving and communication skills, and acquire information on parenting and the promotion of sacred healthy non-abusive relationships.
The Treatment Primer (Roadways to Change) consists of a resource kit designed to raise awareness of family violence issues and promote the value of addressing family violence concerns in a non-confrontational manner.
The Family Violence Prevention Maintenance Program is a follow-up intervention that is intended for men offenders who have completed one of the above-mentioned main national family violence prevention programs. The primary goal of the maintenance program is to reduce the risk of men's violence against intimate female partners by supporting and sustaining treatment gains.
Lastly, the Integrated Correctional Program Model (ICPM) is an innovative and multi-target program which addresses family violence prevention in addition to other risk factors associated with criminal behaviour, such as substance abuse and general violence. The ICPM is a pilot program currently offered in the Atlantic and Pacific Regions and consists of three distinct program streams, all of which include an institutional and community maintenance component thereby extending the continuum of care. The needs of offenders with family violence risk factors are met through the teaching of skills related to mitigating partner violence, general violence and harmful beliefs by addressing distorted thinking patterns such as intimidation, power and control.
Community Action Program for Children (CAPC) and Canada Prenatal Nutrition Program (CPNP) are federally funded Public Health Agency of Canada (PHAC) programs that are jointly managed with provinces and territories and offered across Canada by community based public health organizations.
CAPC and CPNP are intended to reach and respond to the health issues affecting pregnant women, children aged 0 to 6 and their families facing conditions of risk. These include: Low socio-economic status (low income; inadequate housing; insecure employment; food insecurity; and low education); social isolation (lone parent and/or lack of supportive relationships and recent arrival in Canada); teenage parents, situations of violence and/or neglect, tobacco or substance use and/or addiction.
Services incorporate education and intervention activities which include; parenting skills programs, child development activities, health programs, collective kitchens, outreach and home visits. CPNP and CAPC enable communities to develop a continuum of integrated services to promote the health and social development of at risk children and their families. Projects are highly integrated in their communities and are often able to offer referrals to specialized counselling and intervention services.
Health Canada delivers the First Nations and Inuit Component of CPNP (CPNP-FNIC) to First Nations women living on-reserve and Inuit women in Inuit communities. The CPNP- FNIC supports improved maternal and infant health. Funded activities are related to nutrition screening, education, and counselling; maternal nourishment; and breastfeeding promotion, education and support.
PHAC’s Nobody’s Perfect Parenting Program. Implementation is funded by the provinces and territories and offered by social service agencies, non government organizations and community health organizations. It serves parents of children from birth to age five who are young, single, have low income, limited formal education or who are socially, culturally or geographically isolated. The parenting program is based on adult education principles and social support theory to affect positive change in the behaviour of participants in relation to their children’s health, safety and behaviour. Improves parents’ coping skills, sense of competence and positive discipline while decreasing anger and spanking.
Family Violence Toolkit: Building Community Capacity to Address Family Violence was developed by Halte-Femmes Montréal-Nord; federally funded through PHAC’s Community Action Program for Children (CACP) and the Canada Prenatal Nutrition Program (CPNP) National Projects Fund.
The resource is available to service providers and community public health organizations across Canada. This toolkit includes tools and resources that facilitate an understanding of family violence, promote the development of individual and collective strategies when faced with situations of violence, and counteract feelings of powerlessness.
Health Canada’s Brighter Futures (BF) and Building Healthy Communities (BHC). Program funding is available to all First Nations and Inuit communities to support community designed and delivered mental health, child development, parenting and injury prevention programs and services. In addition, funding supports communities to address mental health crises.
The funding is used by communities to address local needs and priorities. It is common for BF/BHC funding to be used by communities to directly address issues of family violence. Activities include the provision of: workshops/support groups on topics like anger management, healthy relationships, and parenting; individual/family counselling; and crisis intervention teams that provide assistance during crisis situations like episodes of family violence.
PHAC provides funding under the Aboriginal Head Start in Urban and Northern Communities (AHSUNC) program to Aboriginal communities in urban and northern communities. Each year, 128 AHSUNC sites across the country reach an estimated 4,800 children and their families. Sites provide parent education/info including outreach and referral services, training and workshops on parenting and assistance for children with special needs. Some sites also support supervised access.
Health Canada’s Aboriginal Head Start On Reserve (AHSOR) program nurtures the healthy growth and development of children from birth to six years of age in First Nations communities across Canada, by supporting the physical, developmental, emotional, social, cultural, and spiritual well-being of children. The program is based on six components: promotion and protection of language and culture; nutrition; education; health promotion; social support; and parental and family involvement.
Health Canada’s Maternal Child Health (MCH) program provides home visits and linkages to services for pregnant First Nations and Inuit women and families with young children. The MCH program model has been linked with improved parenting skills and quality of home environment, improved cognitive development of infants and young children, decreased incidence of unintentional injury, improved bonding and enhanced quality of social supports and resources to families. Services through the MCH program include: reproductive health; screening and assessment of pregnant women and new parents to assess family needs; and home visiting to provide follow-up, referrals, and case management as required. Cultural values are integrated into all program components.
Status of Women Canada’s Women’s Program provides funding to support action to advance equality between women and men in the economic, social and democratic life of Canada. Funding is provided to eligible organizations in support of projects at the local, regional and national levels that address violence against women and girls as one of its three priority areas. Recently funded projects that address the issue of violence against women and girls include those that: promote the engagement of men and boys; support the development of specialized tools; and work to improve existing services/programs for women, communities and service professionals.
Health Canada's National Native Alcohol and Drug Abuse Program (NNADAP) and National Youth Solvent Abuse Program (NYSAP) are a primary network of addiction treatment and prevention programming in place in First Nations and Inuit communities. NNADAP and NYSAP treatment centres include a range of mainstream and culturally relevant approaches. Through these national programs, First Nations and Inuit have access to inpatient, outpatient, and day treatment services, as well as specialized services (e.g., programming for families, youth, solvent abusers, women, and people with concurrent disorders) for people with unique service needs, including those dealing with family issues such as violence.
Health Canada's Fetal Alcohol Spectrum Disorder (FASD) Mentoring Program has a mentor work with a woman to help her decide what would make a positive difference in her life, which they set out in a Plan of Action. This could include a better diet, medical care, working with an Elder, freedom from abuse, or support from her family or friends. Mentors have reported the following benefits: change in lifestyle, returning to school, getting a job, reduced child apprehension, increased return of children from care, becoming role models for other moms, increased involvement in community activities, moved to better housing, and stopped or reduced alcohol use.
Health Canada’s National Aboriginal Youth Suicide Prevention Strategy (NAYSPS) supports initiatives to increase protective factors and reduce risk factors for Aboriginal youth suicide. Projects under the Strategy are diverse and specific to the needs of the communities they serve. While the Strategy does not currently support projects that are directly focused on family violence prevention, communities can choose to direct their NAYSPS funding to this issue. For example, some Regions hold youth and family wellness workshops, family camps, and/or grief and loss training for children and parents.
The provinces have jurisdiction with respect to both civil and criminal provincial courts. The territories also have similar provincial-level courts. Although superior courts are administered by the provinces and territories, the judges are appointed and paid by the federal government.
Unified Family Courts aim to reduce the delays, complexities and costs of the traditional family justice system by providing families access to a single level of court, the provincial superior court, with jurisdiction over all family law matters. These courts comprise a core of specialized judges with extensive family law expertise and offer coordinated links to a broad range of family-centred support services. The federal government appoints and pays the judges of the Unified Family Courts.
Tools/Processes to Ensure Safety
In 2012, Justice Canada updated Criminal Harassment: A Handbook for Police and Prosecutors, which provides guidelines for the investigation, charging and prosecution of criminal harassment cases (also called "stalking”) which is often experienced in the context of family violence.
Screening for Family Violence
Under the Supporting Families Fund (SFI), the Federal Government provides $16 million annually towards provincial and territorial family justice services which include the development of family violence screening tools for triage and referrals.
The Family Violence Initiative (FVI) promotes public awareness of the risk factors of family violence and the need for public involvement in responding to it; strengthens the criminal justice, housing, and health systems to respond; and supports data collection, research and evaluation efforts to identify effective interventions. On behalf of the federal government and 15 partner departments, the Public Health Agency of Canada coordinates the Family Violence Initiative.
DEPARTMENT OF JUSTICE CANADA
- An Estimation of the Economic Impact of Spousal Violence in Canada, 2009 by Ting Zhang et al (2013).
- Health Impacts of Violent Victimization on Women and their Children by Nadine Wathen (2013).
- Intimate Partner Violence Risk Assessment Tools: A Review by Melissa Northcott (2012).
- Inventory of Spousal Violence Risk Assessment Tools Used in Canada by Allison Millar (2009).
- Making appropriate parenting arrangements in family violence cases: applying the literature to identify promising practices by Peter G. Jaffe, Claire V. Crooks and Nick Bala (2006).
- Topics in Family Law: A Collection of Articles “Family Violence” by Cynthia Chewter with Preface & Checklists by Elizabeth Jollimore Q.C.
- Spousal Abuse Policies and Legislation - Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation (2003)
PUBLIC HEALTH AGENCY OF CANADA
NATIONAL CLEARING HOUSE ON FAMILY VIOLENCE
- Psychological Abuse: A Discussion Paper by Deborah Doherty and Dorothy Berglund (2008).
- Sexual Abuse Information Series (2008).
- Aboriginal Women and Family Violence (2008).
- Psychological Abuse: A Discussion Paper by Deborah Doherty and Dorothy Berglund (2008).
- Violence in Dating Relationships – Overview Paper by Katharine D Kelly (2006).
Statistics Canada, Canada’s national statistics agency, regularly collects data on family violence and publishes reports through the Canadian Centre for Justice Statistics. The following are recent examples:
- Family Violence in Canada: A Statistical Profile, 2011 (Juristat, catalogue no 85-002-X, 2013).
- Measuring violence against women: Statistical trends (Juristat, catalogue no 85-002-X, 2013).
- Victim Services in Canada 2009/2010 (Juristat, catalogue no 85-002-X, 2012).
- Victim services in Canada: National, provincial and territorial fact sheets, 2009/2010 (catalogue no 85-003-X, 2012).
- Family Violence in Canada: A Statistical Profile, 2010(Juristat, catalogue no 85-002-X, 2012).
- Family Violence in Canada: A Statistical Profile, 2009 (catalogue no 85-224-X, 2011).
- Family Violence in Canada: A Statistical Profile, 2008 (catalogue no 85-224-X, 2009).
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