“Domestic violence will often give rise to concurrent proceedings in criminal and family court. The family court may be concerned with child protection litigation or issues of custody and access in matrimonial disputes. Criminal and family proceedings are defined by different objectives and governed by different rules. Yet, there are important points of convergence. Where family violence is alleged, or established, the courts must consider the risk of harm posed by the offender to others. Whether it be criminal, child protection or matrimonial litigation, questions of contact and association are often in issue. The assessment of risk is a complicated and imperfect calculus. The more information that can be made available to a court, the better the decision will reflect the realities of the family unit. Of course, at a criminal trial, there are restrictions on admissibility of evidence that may not apply in Family Court. However, when the issue is one of bail, or sentence, or variation of a probation order, the law accommodates a more flexible approach to the receipt of information.
If criminal and family courts are dealing with the same factual issues, affecting the same family, one might expect there to be a mechanism for the sharing of information between the two sectors. Yet, there tends to be little interaction between these systems. The criminal and family courts seem to operate as separate silos, through which cases move vertically, but not horizontally, toward completion. The silo approach or “two solitudes” model does a disservice to the administration of justice. It can lead to conflicting rulings and incomplete records. Important information and evidence can fall through the cracks. In the worst case scenario, the lack of coordination might result in the recurrence of serious violence. As noted in Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems, Vol. 1, the Report of the Federal-Provincial-Territorial (FPT) Ad Hoc Working Group on Family Violence (Ottawa: Dept. of Justice Canada, November 2013) [“FTP Report”]:
Because the system is fragmented and there is a lack of communication, sometimes, no one actor has a full appreciation of the nature of risk to victims.
. . .
Numerous domestic violence death reviews, inquiries and coroners reports have cited the lack of coordination between officials operating in these systems as a contributing factor in tragic family homicides.
The lack of coordination between criminal and family courts has been the subject of academic commentary: see e.g. Dr. Linda C. Neilson, Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Ottawa: Dept. of Justice Canada, 2013) [“Enhancing Safety“]; Joseph Di Luca, Erin Dann & Breese Davies, Best Practices where there is Family Violence: Criminal Law Perspective (Ottawa: Dept. of Justice Canada, 2013) [Di Luca, Dann & Davies]; Nicholas Bala & Kate Kehoe, Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective (Ottawa: Dept. of Justice Canada, 2015). It has also been the subject of study by the Department of Justice, as evidenced by the report cited above. It is beyond the scope of this ruling to engage in a comprehensive discussion of the issue. Suffice to say that this case is one in which the silos are firmly in place. There is no clear mechanism to allow me access to the evidence heard at the child protection proceedings.”