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1997 Legislative Session: 2nd Session, 36th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

MS. STEPHENS

BILL M 204 – 1997

DOMESTIC VIOLENCE PREVENTION ACT

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of British

Columbia, enacts as follows:

1 This Act shall be cited as Domestic Violence Prevention Act.

Interpretation

2 In this Act:

(a) "cohabitants" means:

(

i) persons who have resided together or who are residing together in a

family relationship, spousal relationship or intimate relationship; or

(ii) persons who are the parents of one or more children, regardless of

their marital status or whether they have lived together at any time.

(b) "court" means the Provincial Court or Supreme Court of British Columbia,

as applicable.

(c) "designated justice of the peace" means a presiding justice of the peace

who has been designated for the purposes of this Act;

(d) "domestic violence" means:

(

i) any intentional or reckless act or omission that causes bodily harm or

damage to property;

(ii) any act or threatened act that causes a reasonable fear of bodily harm

or damage to property

(iii) forced confinement; or

(iv) sexual abuse;

(e) "emergency intervention order" means an order

made pursuant to

section 3;

(f) "order" means an emergency intervention order

or a victim's assistance order;

(g) "residence" means a place where a victim normally

resides, and includes a residence that a victim has vacated due to domestic

violence;

(h) "respondent" means any person against whom

an order is sought or made;

(i) "victim" means a cohabitant who has been subjected

to domestic violence by another cohabitant;

(j) "victim's assistance order" means an order

made pursuant to

section 7.

Emergency Intervention Order

(1) An emergency intervention order may be granted ex parte by a designated justice

of the peace where that designated justice of the peace determines that:

(

a) domestic violence has occurred; and

(

b) by reason of seriousness or urgency, the order should be made without

waiting for the next available sitting of a judge of the court in order to ensure

immediate protection of the victim.

(2) In determining whether an order should be made, the designated justice of the

peace shall consider, but is not limited to considering, the following factors:

(

a) the nature of domestic violence;

(

b) the history of domestic violence by the respondent towards the victim;

(

c) the existence of immediate danger to persons or property;

(

d) the best interests of the victim and any child of the victim or any child who

is in the care and custody of the victim

(3) An emergency intervention order may contain any or all of the following

provisions:

(

a) a provision granting the victim and other family members exclusive

occupation of the residence, regardless of ownership;

(

b) a provision directing a peace officer to remove, immediately or within a

specified time, the respondent from the residence;

(

c) a provision directing a peace officer to accompany, within a specified time,

a specified person to the residence to supervise the removal of personal

belongings in order to ensure the protection of the victim;

(

d) a provision restraining the respondent from communicating with or

contacting the victim and other specified persons;

(

e) any other provision that the designated justice of the peace considers

necessary to provide for the immediate protection of the victim

(4) An emergency intervention order may be subject to any terms that the designated

justice of the peace considers appropriate.

(5) Subject to subsection 4 (1), an emergency intervention order shall take effect

immediately.

Order Not in Effect Until Respondent has Notice Thereof

(1) A respondent is not bound by any provision in an order until he or she has notice

of that provision.

(2) Notice of the provisions of an order is to be given in the form and manner

prescribed in the regulations.

Referral To Court

(1) Immediately after making an emergency intervention order, a designated justice

of the peace shall forward a copy of the order and all supporting documentation,

including his or her notes, to the court in the prescribed manner.

(2) Within three working days of receipt of the order and all supporting documentation by the court, or, if a judge is not available within that period, as soon as one

can be made available, a judge shall:

(

a) review the order in his or her chambers; and

(

b) confirm the order where the judge is satisfied that there was evidence before

the designated justice of the peace to support the granting of the order.

(3) For all purposes, including appeal or variation, an order that is confirmed by a

judge pursuant to subsection (2) above, shall be deemed to be an order of the

court granted on an ex parte application.

(4) Where, on reviewing the order, the judge is not satisfied that there was evidence

before the designated justice of the peace to support the granting of the order, he

or she shall direct a rehearing of the matter.

(5) Where a judge directs that a matter be reheard:

(

a) the local registrar shall issue a summons, in the form and manner prescribed

in the regulations, requiring the respondent to appear at a rehearing before

the court; and

(

b) the victim shall be given notice of the rehearing and is entitled, but not

required, to attend and may fully participate in the rehearing personally or

by an agent.

(6) The evidence that was before the designated justice of the peace shall be

considered as evidence at the rehearing.

(7) At a rehearing, the onus is on the respondent to demonstrate, on a balance of

probabilities, why the order should not be confirmed.

(8) Where the respondent fails to attend the rehearing, the order may be confirmed in

the respondent's absence.

(9) At the rehearing, the judge may confirm, terminate or vary the order or any

provision in the order.

Variance of Order

(1) At any time after a respondent has been served with an order, the court, on

application by a victim or respondent named in the order, may:

(

a) make changes in, additions to or deletions from the provisions contained in

the order;

(

b) decrease or extend the period for which any provision in an order is to

remain in force;

(

c) terminate any provision in an order; or

(

d) revoke the order.

(2) On an application pursuant to subsection (1), the evidence before the designated

justice of the peace or the court on previous applications pursuant to this Act shall

be considered as evidence.

(3) The variation of one or more provisions of an order shall not affect the other

provisions in the order.

(4) Notwithstanding any other provision in this Act, an emergency intervention order

shall continue in effect and shall not be stayed by a direction for a rehearing

pursuant to

section 5 or an application pursuant to subsection (1).

(5) Any provision in an order may be subject to or varied by any subsequent order

made pursuant to this Act, any other Act, or any Act of the Parliament of Canada.

Victim Assistance Order

(1) Where, upon application, the court determines that domestic violence has

occurred, the court may make a victim's assistance order containing any or all of

the following provisions:

(

a) a provision granting the victim and other family members exclusive

occupation of the residence, regardless of ownership;

(

b) a provision restraining the respondent from attending at or near or entering

any specified place that is attended regularly by the victim or other family

members, including the residence, property, business, school or place of

employment of the victim and other family members;

(

c) a provision restraining the respondent from making any communication

likely to cause annoyance or alarm to the victim, including personal, written

or telephone contact with the victim and other family members or their

employers, employees or co-workers or others whom communication

would likely cause annoyance or alarm to the victim;

(

d) a provision directing a peace officer to remove the respondent from the

residence within a specified time;

(

e) a provision directing a peace officer to accompany, within a specified time,

a specified person to the residence to supervise the removal of personal

belongings in order to ensure the protection of the victim;

(

f) a provision requiring the respondent to pay the victim compensation for

monetary losses suffered by the victim and any child of the victim or any

child who is in the care and custody of the victim as a direct result of the

domestic violence, including loss of earnings or support, medical and dental

expenses, out-of-pocket losses for injuries sustained, moving and accommodation expenses, legal expenses and costs of an application pursuant to

this Act;

(

g) a provision granting either party temporary possession of specified personal

property including a vehicle, chequebook, bank cards, children's clothing,

medical insurance cards, identification documents, keys or other necessary

personal effects;

(

h) a provision restraining the respondent from taking, converting, damaging or

otherwise dealing with property that the victim may have an interest in;

(

i) a provision recommending that the respondent receive counselling or

therapy;

(

j) a provision requiring the respondent to post any bond that the court

considers appropriate for securing the respondent's compliance with the

terms of the order and/or:

(

k) any other provision that the court considers appropriate.

(2) A victim's assistance order may be subject to any terms that the court considers

appropriate.

Persons Who May Apply

(1) An application for an order may be made by:

(

a) a victim;

(

b) a member of a category of persons designated in the regulations on behalf

of the victim with the victim's consent; or

(

c) any other person on behalf of the victim with leave of the court or the

designated justice of the peace.

(2) An application for an emergency intervention order is to be in the form and

manner prescribed by the regulations and may include an application by telecommunication.

(3) At the hearing of an application for an order, the standard of proof is to be on a

balance or probabilities.

Confidentiality of Victim

(1) The local registrar of the court and a designated justice of the peace shall keep the

victim's address confidential at the request of the victim or a person acting on the

victim's behalf.

(2) The court may order that the hearing of an application or any part of a hearing be

held in private.

(3) On the request of the victim, the court may make an order prohibiting the

publication of a report of a hearing or any part of a hearing if the court believes

that the publication of the report:

(

a) would not be in the best interests of the victim or any child of the victim or

any child who is in the care and custody of the victim; or

(

b) would be likely to identify, have an adverse effect on or cause hardship to

the victim or any child of the victim or any child who is in the care and

custody of the victim

Effect on Real Estate

(1) An order shall not in any manner affect the title to or an ownership interest in any

real or personal property jointly held by the parties or solely held by one of the

parties.

(2) Where a residence is leased by a respondent pursuant to an oral, written or

implied agreement and a victim who is not a party to the lease is granted exclusive

occupation of that residence, no landlord shall evict the victim solely on the basis

that the victim is not a party of the lease.

(3) On the request of a victim mentioned in subsection (2), the landlord shall advise

the victim of the status of the lease and serve the victim with notice of any claim

against the respondent arising from the lease and the victim, at his or her option,

may assume the responsibilities of the respondent pursuant to the lease.

Justice May Issue Warrant

(1) A designated justice of the peace may issue a warrant where, on an ex parte

application by a person designated in the regulations, the designated justice of the

peace is satisfied by information on oath that there are reasonable grounds to

believe that:

(

a) the person who provided the information on oath has been refused access to

a cohabitant; and

(

b) a cohabitant who may be a victim will be found at the place to be searched.

(2) A warrant issued by a designated justice of the peace authorizes the person named

in the warrant to:

(

a) enter, search and examine the place named in the warrant and any connected

premises;

(

b) assist or examine the cohabitant; and

(

c) seize and remove anything that may provide evidence that the cohabitant is

a victim

(3) Where the person conducting the search believes on reasonable grounds that the

cohabitant may be a victim, that person may remove the cohabitant from the

premises for the purposes of assisting or examining the cohabitant.

Appeal to Court of Appeal

12 With leave of a judge of the Court of Appeal, an appeal from any order made pursuant

to this Act may be made to the Court of Appeal on a question of law.

No Other Rights Affected

13 An application for an order pursuant to this Act is in addition to and does not diminish

any existing right of action for a victim.

Appointment of Justice

(1) The Chief Justice of the Provincial Court of British Columbia may designate a

presiding justice of the peace to hear and determine applications pursuant to this

Act.

(2) Where the Chief Justice designates a presiding justice of the peace to hear applications pursuant to this Act, the chief judge shall specify the place at which and

period during which the presiding justice of the peace may hear those applications.

(3) The Chief Justice may delegate the exercise of the power to designate a presiding

justice of the peace to hear applications pursuant to this Act to a supervising

justice of the peace. The exercise of that power by the supervising justice of the

peace is deemed to be an exercise by the chief judge.

No Action Lies

15 No action lies or shall be instituted against a peace officer, a local registrar or any other

person for any loss or damage suffered by a person by reason of anything in good faith

done, caused, permitted or authorized to be done, attempted to be done or omitted to

be done by any of them:

(

a) pursuant to or in the exercise or supposed exercise of any power conferred

by this Act or the regulations; or

(

b) in the carrying out or supposed carrying out of any decision or order made

pursuant to this Act or the regulations or any duty imposed by this Act or

the regulations.

Regulations

16 The Lieutenant Governor in Council may make regulations:

(

a) defining, enlarging or restricting the meaning of any word or phrase used in

this Act but not defined in this Act;

(

b) prescribing forms for the purposes of this Act;

(

c) prescribing the procedures to be followed for applications, hearings and

rehearings pursuant to this Act;

(

d) prescribing the manner in which a designated justice of the peace is to

forward a copy of an emergency intervention order and all supporting

documentation to the court;

(

e) designating persons or categories of persons who may make applications

for an order on behalf of a victim with the victim's consent;

(

f) designating persons or categories of persons who may apply for a warrant

pursuant to

section 11;

(

g) prescribing the form and manner of providing any notice or summons

required to be provided pursuant to this Act, including prescribing substitutional service and a rebuttable presumption of service.

(

h) prescribing any other matter or thing required or authorized by this Act to

be prescribed in the regulations;

(

i) respecting any other matter or thing that the Lieutenant Governor in Council

considers necessary to carry out the intent of this Act.

Proclamation

17 This Act comes into force on proclamation.

Explanatory Note

This Bill will afford victims of domestic violence greater access and protection through the use of a justice of the peace. The removal of the offender from the home, rather than removing the victim and children, is a major innovation. In addition to removal of the offender, an emergency intervention order and a victim assistance order can provide for the comfort and safety of the victim and other family members who remain in the home. In the judicial system, the onus will be on the respondent to demonstrate why such orders should not be in place and the focus will be on greater protection for the victim.

Provisions for the respondent to be restrained, removed and/or attend counselling or therapy are also included.

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