An Overview of the Intersect between the Family Law Act, Criminal Code and the Ministry of Children and Family Development

Transcription

1 FAMILY LAW FOR NON-FAMILY LAWYERS PAPER 5.1 An Overview of the Intersect between the Family Law Act, Criminal Code and the Ministry of Children and Family Development These materials were prepared by Graham A. Kay of Webber Weiser McKinley & Kay, Kamloops, BC, for the Continuing Legal Education Society of British Columbia, September Graham A. Kay

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3 5.1.1 AN OVERVIEW OF THE INTERSECT BETWEEN THE FAMILY LAW ACT, CRIMINAL CODE AND THE MINISTRY OF CHILDREN AND FAMILY DEVELOPMENT I. Introduction...1 II. Protection Orders and Enforcement Under the Criminal Code...1 A. Who Applies for a Protection Order?... 2 B. Family Members and At-Risk Family Members... 2 C. Defining Family Violence... 3 D. Determining Whether to Make a Protection Order... 3 E. Content of Protection Orders... 3 F. Enforcement of Protection Orders... 4 G. Service of Protection Order Issues... 4 H. Charge Alternatives... 5 III. The Effect of Protection Orders on Civil Orders... 5 IV. Reconciliation and Criminal Restraining Orders... 5 V. Criminal Charges and Claims Involving Custody and Parenting Arrangements... 6 VI. Intervention by Ministry of Children and Family Development... 7 VII. Calling the Client s Family Law Lawyer... 7 VIII. Conclusion... 7 IX. Selected Bibliography... 8 I. Introduction The Family Law Act (the FLA ) came into force in March 2013 and brought a new focus on the importance of family violence issues and the safety and protection of vulnerable family members. This paper provides an overview of how the FLA addresses family violence, protections orders, enforcement provisions, and the intersect between the FLA, the Criminal Code of Canada, and the Ministry of Children and Family Development. Lastly, there are recommendations for non-family lawyers who have clients who may be involved in a family law dispute or are experiencing family violence issues. II. Protection Orders and Enforcement Under the Criminal Code The need for court-ordered protection for vulnerable family members is not new or even unique to the FLA (see also the Child, Family and Community Service Act, R.S.B.C. 1996, c.46). The previous legislation, the Family Relations Act (the FRA ), empowered courts to make orders restraining the harassment of a person having lawful custody of a child, the child, or both by any person. The court also had the power to make orders prohibiting the interference of a child by a person provided that an enforceable custody order or separation agreement was in place. This was essentially a no-contact and a no-go order.

4 5.1.2 Under the FRA, enforcement of these restraining orders was sporadic, inconsistent, and remedies varied depending on whether the matter was in Provincial or Supreme Court. The FRA allowed the court to require an individual subject to the order to enter into a recognizance, with or without sureties, or to post a bond, but such sanctions were rarely imposed. The FRA specifically made it an offence to not comply with a restraining order, but prosecution under the Offence Act was rare. The FRA did not specifically address the issue of family violence. The conduct of an individual was relevant in a family law matter only to the extent that the conduct affected the best interests of the child, and often this was interpreted to mean the presence of physical abuse. If this could be made out, the court would often address the issue by awarding sole custody to one parent and possibly supervised access to another parent for a period of time. In many cases, victims of family violence had to hope that either the behaviour of the other parent would come to the attention of the police, or (and less desirous for many) to the attention of child protection authorities. The FLA represents a significant evolution in the understanding of family violence, its impact on family members, the need for consistent assessment procedures, consistent and effective court-ordered sanctions, and the need for rehabilitative measures. A protection order is a stand-alone order that is made against a family member for the protection of another family member, and may be granted in either the Provincial or Supreme Court. An application may be made with or without notice to the other party, and need not be in conjunction with an application regarding any other family dispute. The court may make a protection order if the court determines that family violence is likely to occur and if the family member falls into the definition of an at-risk family member. A. Who Applies for a Protection Order? The FLA allows for either a family member who claims to be an at-risk family member to apply for a protection order, a person on behalf of the at-risk family member to apply, or on the court s own initiative (FLA s. 183). B. Family Members and At-Risk Family Members The FLA has given a broad definition to the meaning of family member (FLA s. 1), which was undefined in the FRA. The definition includes: (a) the person s spouse or former spouse, (b) a person with whom the person is living, or has lived, in a marriage-like relationship, (c) a parent or guardian of the person s child, (d) a person who lives with, and is related to, (e) the person, or (f) a person referred to in any of paragraphs (a) to (c), or (g) the person s child, and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e). The broad definition recognizes that households or families are more than just two parents and children, and captures situations such as parents who have adult children living with them. An at-risk family member is defined as a person whose safety and security is or is likely at risk from family violence carried out by a family member (FLA s. 183).

5 C. Defining Family Violence The FLA includes a broad definition of family violence. The definition is used not only for protection orders, but also in determining the best interests of a child and parenting arrangements either by court order or agreement. Family violence under the FLA includes (FLA s. 1): (a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (b) sexual abuse of a family member, (c) attempts to physically or sexually abuse a family member, (d)psychological or emotional abuse of a family member, including (i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member s financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (e) in the case of a child, direct or indirect exposure to family violence. The FLA brings BC legislation more in line with developments in other provinces (see the White Paper of Family Relations Act Reform Proposals for a New Family Law Act, Ministry of Attorney General (BC), July 2010 for a full discussion). It is important to note that this definition goes beyond direct physical violence and includes a variety of behaviours that foster power imbalances that lead to the dominance of one person over another. D. Determining Whether to Make a Protection Order The FLA includes a comprehensive, although not exhaustive, risk assessment tool for the courts to use in order to determine whether or not a protection order is appropriate (see FLA s. 184) based on the family violence factors listed above. Additionally, the court must consider a number of factors that are associated with an increased risk for family violence, such as the history and pattern of violence, the status of the relationship between the at-risk family member and the family member against whom the order is sought, substance abuse, mental health issues, financial difficulties, access to weapons, perceptions of the at-risk family member concerning their safety, and other circumstances that may increase the at-risk person s vulnerability, such as age, health, pregnancy or financial dependence. When the at-risk family member is a child, the court must further consider whether the child may be exposed to family violence if an order is not made and whether or not a child requires protection separate from that of a parent or guardian (FLA s. 185). The court is not limited to making an order against one person. Nor is the court restricted from making an order when criminal charges are pending or have been laid against the family member. This is an important feature of the FLA. Criminal proceedings may take considerably longer to work their way through the court before a decision is made. An at-risk family member may be reluctant to proceed through the criminal court when the other family member faces a possible criminal conviction. The ability of the civil courts to make a protection order is efficient, timely, and effective. E. Content of Protection Orders The content of a protection order will contain conditions similar to that found in judicial interim release provisions, probation orders or s. 810 peace bonds under the Criminal Code when family violence is the issue. The terms may include no-contact provisions (or restrictions on the contact or method of contact) with the

6 5.1.4 at-risk family member, non-attendance or no-go provisions to places where the at-risk family member attends, or restrictions on possession of weapons or firearms. The protection order may include directions to a police officer to immediately remove the family member from the residence or within a specified time, to accompany and supervise a family member as they gather personal belongings from the residence, or to seize any weapons or firearms and related documents from the family member. The order may contain a provision that the family member either report to the court or to a person named by the court at a specified time and in a manner determined by the court. The court may also impose any other terms or conditions that it considers necessary to protect the safety and security of the at-risk family member or, to implement the order. A protection order under the FLA is effective the day it is made. The order will automatically expire after one year from the date it is made. The court is at liberty to designate a different expiry date. The inclusion of the expiration date will hopefully resolve issues under the FRA whereby no expiration dates were included in restraining orders, and therefore their enforcement was brought into question. F. Enforcement of Protection Orders The FLA specifically states that protection orders are not enforceable under the FLA or the Offence Act (FLA s. 188). This allows for enforcement to occur under s. 127 of the Criminal Code for disobeying an order of a court without a lawful excuse. This is a hybrid charge, in that the Crown may proceed either as an indictable offence or a summary conviction offence. The penalties are up to two years imprisonment if Crown proceeds by indictment, or up to six months imprisonment if by summary conviction. A range of sentencing options is open for the judge upon conviction that does not include actual jail time. Upon receiving a complaint that a family member may have contravened a protection order, the police will engage their usual investigative procedures. Protection orders are registered on the Protection Registry on the day that they are made, and police detachments have access to the Registry at all times. The FLA directs that police officers who have reasonable and probable grounds to believe that a family member has breached a condition of a protection order, may take action to enforce the order, even when proof of service of the order upon the family member is not available. A police officer may use reasonable force, such as when they must remove a family member from a residence or make an arrest. The usual criminal procedures will be used with the family member who has allegedly disobeyed the protection order. Therefore, depending upon the seriousness of the alleged breach, the family member may be released from police custody on a Promise to Appear in court on a specified date, an Undertaking to Appear in court with conditions, or may be held to appear before a Justice of the Peace or a judge for an application for judicial interim release, at which time the usual bail procedures apply. Subsequent fixing of trial dates and/or sentencing dates will follow along local procedures for Provincial or Supreme Courts. At this time it is understood that Crown will not place these actions in Domestic Violence Trial Courts. G. Service of Protection Order Issues Although the FLA allows police to act for the safety of the at-risk family member without proof of the protection order being served upon the family member subject to the protection order, the actual service of the order seems essential for the successful prosecution of the offence under the Criminal Code. Unfortunately, this element has not been strongly emphasized in material that lay litigants receive and could be overlooked by lawyers not familiar with criminal procedures. Fortunately, because police officers have access to the orders through the Protection Order Registry, officers may serve the order on the family member at the time that they are enforcing the order. Service of the protection order however, is not sufficient. An affidavit of service needs to be completed by the person serving the protection order upon the family member and filed in the family file in court registry. Crown counsel will have access to that file to determine if the family member is likely to have known about

7 5.1.5 the order. However, Crown may have to call the affiant as a witness if there is a trial; therefore it is important that the affidavit be completed properly. My own practice is to have a process server serve the protection order and complete the affidavit of service. Service of protection orders following ex-parte hearings are particularly troublesome. These hearings are conducted on an urgent basis, and often the at-risk family member is appearing on their own or with the assistance of duty counsel. The service requirements for a successful prosecution of a breach under the Criminal Code can easily be overlooked or dismissed as not important. The family member has no knowledge of the protection order and may unknowingly breach its conditions and may place the at-risk family member at greater risk of harm. While the police will be able to intervene, Crown will not likely be able to proceed with a charge of disobeying a court order. Under no circumstances should an at-risk family member serve the protection order upon the family member. This would increase the risk of harm to the at-risk family member with possible dire consequences. Unfortunately, the drafters of the legislation did not sufficiently take into account the service issues. In Alberta, the Protection Against Family Violence Act Regulation specifically provides that service of the order will be made by a peace officer or such other person as the judge directs (AR 80/99, s.7). As the number of lay litigants continues to rise in family matters, such an approach would assist in ensuring that orders are served and would provide a measure of safety to the at-risk family member. H. Charge Alternatives The absence of proper service is not fatal to a successful prosecution of a family member. The Crown may lay other charges if they meet the charge approval standards, such as for assault or criminal harassment. When more substantive charges are appropriate, the alleged breach may take on a secondary role. III. The Effect of Protection Orders on Civil Orders In criminal proceedings, a number of protection orders are routinely made regarding family members, such as undertakings or conditions of a recognizance to not have contact with a spouse or children following release from police or bail, conditions pursuant to a s. 810 Peace Bond, or probation conditions. Sometimes, particularly in the early stages of a criminal proceeding, the conditions may affect the parenting or contact time that a family member has with their children. It is important for the criminal lawyer to know the parenting arrangements pursuant to orders made under the Family Law Act, the Divorce Act or a separation agreement so that they can present the information to the court in order to preserve a parent s ability to see their children when appropriate. When there is a conflict or inconsistency between a protection order made under the Criminal Code and an order regarding parenting time, contact or access to a child, the Criminal Code order will prevail. Similarly, a protection order under the FLA prevails over any other orders regarding parenting time, contact or access to a child. These safety provisions will stay in place until such time as the protection orders are varied to eliminate the conflict or the protection order is terminated (FLA s. 189). IV. Reconciliation and Criminal Restraining Orders Lawyers who work with families on a regular basis know that at times circumstances lead to increased stress in relationships and conflict can escalate beyond what may be the usual circumstance in the family. Financial stressors, mental health or other health issues, addiction or alcohol abuse, are just some of the symptoms that may contribute to a person s poor behaviour that may lead to police intervention and possible criminal charges. In many of these situations, the family is not looking for a permanent separation, but rather to find appropriate help for the family member so that a healthy, safe environment can be reinstated.

8 5.1.6 In such situations, a s. 810 Peace Bond may be the appropriate avenue to promote rehabilitation and reconciliation in a safe manner. The Peace Bond does not result in a criminal conviction, but a breach may be charged either by indictment or a summary conviction offence. The Peace Bond is based on a reasonable fear that the other person will cause personal injury to them or their children or will damage their property. A judge will order reasonable conditions to ensure the safety of the individuals concerned, which may include counselling provisions, conditions regarding contact, conditions regarding the consumption of drugs and alcohol, prohibitions on possessing weapons, to name a few. The term of the Peace Bond is up to one year. When seeking a Peace Bond that has a goal of reconciliation, it is important to have a well-developed plan to present to Crown and the court. This will require that counsel consult with the appropriate family members and service agencies that will be assisting the subject of the Peace Bond. A well-developed plan will go a long way to facilitate the successful rehabilitation of the family member, and to ensure the safety of at-risk family members. V. Criminal Charges and Claims Involving Custody and Parenting Arrangements Some of the more common criminal charges related to family disputes are assault, criminal harassment and mischief. The mere existence of the charge (that is, not even a conviction) can inflame a family law dispute and result in interim orders restricting a family member s ability to see their children or restricting their parental responsibilities even if a protection order is not sought. If a dispute is headed to trial, a party may apply for disclosure of police records that may be used in the trial. Under the FLA, the parties and the court must consider only the best interests of the child when making agreements or orders respecting guardianship, parenting arrangements or contact with a child. A number of factors that must be considered when determining the best interests of the child are listed in s. 37, including issues related to family violence and its impact on a child s safety, security or well-being, or any civil or criminal proceeding relevant to the child s safety, security or well-being. The conduct of an individual will be relevant in a family law dispute if it substantially affects a factor used to determine the best interests of a child, which may include violence that is directed towards a spouse and not directed towards the child. Under the FLA, a parent is not automatically a guardian of their child (FLA s. 39). This may occur when the parents did not live together after the birth of a child. This will usually mean that the father is not a guardian. Under the FLA, only guardians may have parenting time and parenting responsibilities (FLA s. 40). All others may have contact time with a child. There are some exceptions for a parent who has not lived with their child to be considered a guardian, such as if an agreement is made that provides that the parent is a guardian or if the parent regularly cares for the child. But if the parent does not fall into the exception category and the parent wants to assume parental responsibilities, the parent must apply to the court to be recognized as a guardian. This is a cumbersome process that requires the parent (again, usually the father), to complete a Protection Order Registry check, a Ministry of Children and Family Development record check and a Criminal Record check. Depending on the content of these checks, a parent could be excluded as their child s guardian. However, the content of the criminal record check was recently criticized by the Honourable Judge S. Frame as being inadequate to fulfill the intention of the FLA to screen for the existence of criminal activity that may affect the best interests of the child when trying to determine if a non-guardian parent should be made a guardian (Director and L.M.P. / L.M.P. v. K.P. et al., 2013 BCPC 206; Director and L.M.P. / L.M.P. v. K.P. et al., 2013 BCPC 206).

9 5.1.7 VI. Intervention by Ministry of Children and Family Development In most jurisdictions in the province, when the police are called to respond to a family violence situation where children may be involved, the police will contact MCFD. A child protection social worker may respond immediately or follow-up within a short period of time and conduct a safety assessment for the children. MCFD has a range of options available to them to ensure the safety of the children up to and including the immediate removal of the children from the care of the parents. A full discussion of child protection issues is beyond the scope of this paper. Until recently, many child protection social workers held the mistaken belief that just by being involved they could direct a parent to withhold contact between a parent and the children as part of a safety plan, even when there was court order for parenting time or access. This has recently been clarified that MCFD does not have the authority to override an existing court order unless they have removed a child from the parents care (M.L.J. v. R.D.J., 2013 BCSC 1358). However, under the Child, Family and Community Services Act, if the director has reasonable grounds to believe that contact between a child and another person would cause the child to need protection, the director may apply for a protective intervention order for a period of up to six months (CFCSA s. 28). A breach of such an order is enforceable under s. 127 of the Criminal Code, just as a breach of a protection order under the FLA. VII. Calling the Client s Family Law Lawyer Under the FLA, a family lawyer (along with some other professionals) is designated as a family dispute resolution professional, and must assess whether family violence may be present and whether the family violence may adversely affect the safety of the party or a family member, as well as other prescribed duties (FLA s. 8). The FLA is a complex statute and whether a matter is in Supreme Court or Provincial Court, the rules and procedures are difficult to navigate if a person is unfamiliar with them. The new emphasis on assessing family violence issues will be subject to much interpretation by the courts. When you know that a client is involved in a family law dispute and that family violence may be an issue, it is advisable to contact their lawyer immediately. This will allow the family lawyer to assess the nature of the violence, what measures must be taken under the FLA and the urgency of the matter. If the person does not have a family lawyer but is working with another designated family law dispute professional, it is recommended that you either obtain consent from your client to contact that professional or, at the very least, to encourage your client to raise the issue with their family law dispute professional. If your client is not involved with either of these, they should be directed to contact a family lawyer or family duty counsel in their community. VIII. Conclusion This paper provided an overview of various issues related to the new Family Law Act, the Criminal Code of Canada and the involvement of the Ministry of Children and Family Development. Each of these areas deal with issues of family violence and at various times in the lifespan of a family may intersect. Each area has the capacity to address certain aspects of family violence and provide for the protection of at-risk or vulnerable family members from other family members. The complexity of family violence issues, available resources to assist families, in addition to the legal remedies available are difficult for most individuals to deal with on their own. Non-Family lawyers who have clients who are either involved in a family law dispute or who are involved in some sort of family violence, should contact their client s family lawyer as soon as possible or, if they do not have a family lawyer, should either direct them to a family lawyer or family duty counsel.

10 LEGISLATION Criminal Code, R.S.C. 1985, c.c-46 Divorce Act, R.S.C. 1985, c IX. Selected Bibliography Child, Family and Community Service Act, R.S.B.C. 1996, c.46 Family Relations Act, R.S.B.C. 1996, c.128 Family Law Act, S.B.C. 2011, c.25 Offence Act, R.S.B.C. 1996, c.338 Protection Against Family Violence Act, R.S.A. 2000, c.p-27 JURISPRUDENCE M.L.J. v. R.D.J., 2013 BCSC 1358 Director and L.M.P. / L.M.P. v. K.P. et al., 2013 BCPC 206 SECONDARY SOURCES Ministry of Attorney General. White Paper of Family Relations Act Reform Proposals for a New Family Law Act (Ministry of Attorney General (BC): July 2010) Continuing Legal Education Society of BC. The Family Law Act: Everything You Always Wanted to Know (CLEBC: January 2013) Continuing Legal Education Society of BC. Family Law Act Transition Guide (CLEBC: August 2012)