Second

Session, 45th General Assembly

Elizabeth II, 2005

BILL 50

AN ACT RESPECTING

PROTECTION AGAINST FAMILY VIOLENCE

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

THOMAS W. MARSHALL ,

Minister

of Justice and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would provide a new

mechanism to protect persons who are threatened with or are the victims of

family violence. The Bill would

establish a simple and quick procedure to allow a victim of family violence to

apply to a Provincial Court judge for an emergency protection order. The order could include a number of

provisions, including granting the applicant sole occupancy of the residence or

use of property, restricting contact between the applicant and respondent,

granting temporary custody of children to the applicant and banning publication

of the proceedings. The emergency protection

order would remain in effect for a maximum of 90 days but would not be subject

to renewal or extension.

The Bill would provide procedural

fairness to the respondent who would have the right to apply for a hearing to

set aside the emergency protection order, or to vary or terminate the order in

whole or in part and the right to be heard and to examine and cross-examine

witnesses in the course of such a hearing.

The court hearing an application to set aside or to vary or terminate an

emergency protection order would be permitted to consider both new evidence and

the evidence originally adduced in support of the application for the emergency

protection order.

Emergency protection orders would be

enforceable by the police and the Bill would make it an offence, punishable on

summary conviction, to breach a provision of an emergency protection order or

to violate an order of the court made under the Act.

A BILL

AN ACT RESPECTING PROTECTION AGAINST FAMILY

VIOLENCE

Analysis

Short title

Definitions

Family violence defined

Application process

Granting of emergency protection order

without notice to another person

Contents of emergency protection order

Duration of emergency protection order

Respondent to have notice

Right to review

Application to set aside

Powers of judge on hearing to set aside

Application to vary or terminate

Effect of emergency protection order

Effect on property and leasehold

interest

Order directs police officer

Confidentiality

Protection from personal liability

Penalties

Duty to report continued

Regulations

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Family Violence

Protection Act .

Definitions

2. In

this Act

(a) "applicant"

means a person referred to in subsection 4(1)

(

i) who applies for an emergency protection order,

(ii) on whose behalf an application is made for an

emergency protection order, or

(iii) who is granted an emergency protection order;

(b) "child" means a child born within or

outside marriage who ordinarily or periodically resides with the applicant and

is under the age of 19 years and unmarried and includes

(

i) a child adopted under the Adoption Act ,

(ii) a child whom the applicant has demonstrated a

settled intention to treat as a child of his or her family, and

(iii) a child in the actual care and custody of the

applicant;

(c) "clerk" includes a clerk acting

under the Criminal Code ( Canada )

and the Youth Criminal Justice Act ( Canada )

and a person who performs the duties of a clerk of the court;

(d) "court" means the Provincial Court

of Newfoundland and Labrador ;

(e) "emergency protection order" means

an order granted under

section 5;

(f) "family violence" means

an act or

omission described in subsection 3(1);

(g) "judge" means a Provincial Court judge appointed under the Provincial Court Act, 1991 and includes the chief judge;

(h) "minister" means the minister appointed

under the Executive Council Act to

administer this Act;

(i) "police officer" means

(

i) a member of the Royal Newfoundland

Constabulary, and

(ii) a member of the Royal Canadian Mounted Police

Force stationed in the province;

(j) "property" means an interest,

present or future, vested or contingent, in real or personal property,

including companion animals, and includes property that

(

i) a person owns, or

(ii) a person does not own but

(

A) uses or enjoys,

(

B) is available for the person's use or

enjoyment,

(

C) is in the person's care or custody, or

(

D) is at the person's residence;

(k) "residence" means a place where the

applicant normally resides and includes a residence that the applicant has

vacated due to family violence;

(l) "respondent" means a person against

whom an emergency protection order is sought or granted under this Act;

(m) "rules of court" means the rules

made under

section 29.1 of the Provincial

Court Act, 1991 ; and

(m) "weapon" has the meaning assigned to

it under

section 2 of the Criminal Code

( Canada ) and includes an explosive substance.

Family violence

defined

(1) For

the purpose of this Act, "family violence" means one or more of the

following acts or omissions committed against an applicant or a child by a

respondent:

(

a) an assault that consists of the intentional

application of force that causes the applicant to fear for his or her safety

but does not include

an act committed in self-defence;

(

b) an intentional, reckless or threatened act or

omission that causes bodily harm or damage to property;

(

c) an intentional, reckless or threatened act or

omission that causes a reasonable fear of bodily harm or damage to property;

(

d) forcible physical confinement without lawful

authority;

(

e) sexual assault, sexual exploitation or sexual

molestation, or the threat of sexual assault, sexual exploitation or sexual molestation;

(

f) conduct that causes the applicant to

reasonably fear for his or her safety, including following, contacting,

communicating with, observing or recording a person; and

(

g) the deprivation of food, clothing, medical

attention, shelter, transportation or other necessaries of life.

(2) Family violence may be found to have occurred

for the purpose of this Act whether or not, in respect of

an act or omission described

in subsection (1), a charge has been laid or dismissed or withdrawn or a

conviction has been or could be obtained.

(3) For the purpose of this Act, a respondent who

encourages or solicits another person to do

an act which, if done by the

respondent, would constitute family violence against the applicant, is

considered to have done that act personally.

Application

process

(1) An

application for an emergency protection order may be made by

(

a) a person who resides with or has resided with

the respondent in a conjugal relationship, whether within or outside marriage;

(

b) a person who is, together with the respondent,

a parent of one or more children, regardless of their marital status or whether

they have lived together.

(2) The following persons may apply on behalf of

an applicant referred to in subsection (1) for an emergency protection order:

(

a) a police officer or lawyer, on behalf of a

person referred to in subsection (1) and with that person's consent; or

(

b) a member of a class of persons designated in

the regulations under paragraph 20(c).

(3) An application for an emergency protection

order shall be in the form and made in the manner prescribed by the rules of

court.

(4) Evidence adduced in support of an application

for an emergency protection order shall be given under oath.

(5) An application for an emergency protection

order shall contain a

summary of all previous and current proceedings and

orders affecting the applicant and the respondent, including all previous

applications and orders made under this Act.

Granting of emergency

protection order without notice to another person

(1) A

judge, on the application of a person referred to in subsection 4(1) made in

the prescribed form and manner, may make an emergency protection order without

notice to another person where the judge determines on a balance of

probabilities that

(

a) family violence has occurred; and

(

b) by reason of seriousness or urgency the

emergency protection order should be made without delay to ensure the immediate

protection of the applicant who is at risk of harm or the property that is at

risk of damage.

(2) In determining whether an emergency protection

order should be made, the judge shall consider, but is not limited to considering,

the following factors:

(

a) the nature of the family violence;

(

b) the history of family violence by the

respondent towards the applicant and whether it is more likely than not that

the respondent will continue the family violence;

(

c) the existence of immediate danger to persons

or property; and

(

d) the best interests of the applicant and an

affected child.

(3) For the purpose of paragraph (2)(c), immediate

danger to persons or property may be found to exist, notwithstanding that the

applicant has been forced to vacate his or her residence as a result of the

family violence of the respondent and has found temporary shelter elsewhere.

Contents of emergency

protection order

6. An

emergency protection order may contain one or more of the following provisions

that the judge considers necessary and advisable in the circumstances for the

immediate protection of the applicant who is at risk of harm or the property

that is at risk of damage:

(

a) a provision granting the applicant exclusive

occupation of the residence for a defined period, regardless of ownership;

(

b) a provision directing a police officer to

remove the respondent from the residence immediately or within a specified

time;

(

c) a provision directing a police officer to

accompany a specified person, within a specified time, to the residence to supervise

the removal of personal belongings in order to ensure the protection of the

applicant;

(

d) a provision restraining the respondent from

directly or indirectly communicating with the applicant or another specified

person;

(

e) a provision restraining the respondent from

attending at or near, or entering, a place that is attended regularly by the applicant,

a relative of the applicant, a child or other specified person, including a

residence, property, business, school or place of employment;

(

f) a provision granting the applicant temporary

possession of or control over specified personal property, including a motor

vehicle, cheque book, bank card, health services card or supplementary medical

insurance card, identification documents, keys, utility or household accounts

or other personal effects;

(

g) a provision restraining the respondent from

taking, converting, damaging or otherwise dealing with property in which the

applicant has an interest;

(

h) a provision restraining the respondent from

committing further acts of family violence;

(

i) a provision prohibiting the publication of the

name and address of the applicant or a child or other information that may

identify the applicant or a child;

(

j) a provision directing the respondent to

deliver up to a police officer, until a further order is made under the Criminal Code (Canada), the Firearms Act (Canada) or another Act,

(

i) a weapon that the respondent owns, possesses

or controls, and

(ii) a document that authorizes the respondent to

own, possess or control a weapon referred to in subparagraph (i);

(

k) where an order includes a provision under

paragraph (j), a provision that if the respondent does not deliver up the items

referred to in the order, a police officer may, for the purpose of seizing the

items, enter and search a place where the police officer has reason to believe

the items are located with the assistance and force that are reasonable in the

circumstances;

(

l) a provision requiring the respondent to make

the rent or mortgage payments arising in respect of the residence;

(

m) a provision restraining the respondent from

terminating the basic services of utilities servicing the residence;

(

n) a provision awarding temporary care and custody

of a child to the applicant or some other person; and

(

o) another provision that the court considers

necessary to ensure the immediate protection of the applicant or another person

or property that is at risk of harm or damage.

Duration of emergency

protection order

(1) A

provision of an emergency protection order referred to in

section 6 may be

appropriate to ensure the protection from family violence of the applicant or a

child, including a term that specifies the period of time for which the

emergency protection order or a provision of the emergency protection order

shall be in effect.

(2) Notwithstanding subsection (1) or another

provision of this Act, the duration of an emergency protection order shall not

exceed 90 days.

(3) Notwithstanding subsection (1), a provision of

an emergency protection order made under paragraph 6(

j) shall cease to be in

force in respect of a firearm or other weapon that is the subject of the provision,

if an order or final determination with respect to the respondent's ownership,

possession or control of the firearm or other weapon is made under the Criminal Code (Canada) or the Firearms Act (Canada) in respect of the

events on which the emergency protection order is based.

(4) An emergency protection order may not be

renewed or extended.

Respondent to

have notice

(1) An

emergency protection order is effective upon its being made, but the respondent

is not bound by the emergency protection order or by a provision of the

emergency protection order until he or she has notice of the emergency

protection order.

(2) Notice of an emergency protection order shall

be served on the respondent in the form and in the manner prescribed by the

rules of court.

(3) Where, on application to a judge, it appears

that

(

a) attempts at service or substituted service of

the notice on the respondent have failed; and

(

b) the respondent is evading service,

the judge may by order dispense with

service of the notice and the respondent is considered to have notice of the

emergency protection order.

Right to review

9. Every

emergency protection order shall contain provisions that

(

a) advise the respondent of his or her right

under subsection 10(1) to apply to a judge to have the emergency protection

order set aside;

(

b) advise the applicant and the respondent that

each has the right to apply to a judge after the emergency protection order is

made for a variation or termination of the emergency protection order or a part

of it; and

(

c) set out the procedures to be followed in

making an application under paragraph (

a) or (b).

Application to

set aside

(1) A

respondent against whom an emergency protection order is made under subsection

5(1) may apply to a judge within 10 days after being served with, or receiving

notice of, the emergency protection order or a further time that the judge may

allow, to have the emergency protection order set aside.

(2) An emergency protection order made under

subsection 5(1) is not stayed by an application under subsection (1).

(3) An application under subsection (1) shall be

in the form and in the manner prescribed by the rules of court.

(4) On an application under subsection (1)

(

a) the hearing shall be considered to be a new hearing

and, in addition to new evidence brought before the judge, evidence adduced in

support of the application for an emergency protection order shall be

considered as evidence; and

(

b) the respondent has the right to be heard and

the right to examine and cross-examine witnesses.

Powers of judge

on hearing to set aside

(1) The

judge hearing an application under subsection 10(1) may

(

a) set aside the emergency protection order if

the respondent demonstrates on the balance of probabilities that the order

should be set aside;

(

b) set aside the emergency protection order if

both the applicant and the respondent agree that the order should be set aside;

(

c) dismiss the application to set aside the

emergency protection order; or

(

d) vary the emergency protection order if

satisfied that a material change in circumstances has occurred.

(2) Notwithstanding paragraph (1)(b), where the

judge hearing the application to set aside the emergency protection order is

not satisfied that both the applicant and the respondent have freely and voluntarily

agreed to set aside the order, the judge may adjourn the proceeding to allow

legal advice to be obtained.

Application to

vary or terminate

(1) Notwithstanding

section 10 and at any time after the respondent has been served with notice of

an emergency protection order, a judge, on application by either the applicant

or the respondent named in the emergency protection order, may, if satisfied on

the balance of probabilities that there has been a material change in

circumstances since the emergency protection order was made,

(

a) vary the emergency protection order, or a

provision of the emergency protection order, including the duration of the

emergency protection order or provision of the emergency protection order;

(

b) add provisions from

section 6 to the emergency

protection order;

(

c) terminate a provision of the emergency

protection order; or

(

d) terminate the emergency protection order in

its entirety.

(2) An application under subsection (1) shall be

in the form and in the manner prescribed by the rules of court.

(3) On an application under subsection (1),

(

a) the hearing shall be considered to be a new

hearing and, in addition to other evidence that may be adduced, the court may

consider the evidence that was before the court on previous applications in

respect of the emergency protection order; and

(

b) the respondent has the right to be heard and

the right to examine and cross-examine witnesses.

(4) The termination or variation of one or more

provisions of an emergency protection order does not affect the other

provisions of the emergency protection order.

(5) Unless otherwise ordered by the court, an

emergency protection order continues in effect and is not stayed by an

application under subsection (1).

(6) On an application under subsection (1), the

judge shall consider an outstanding order made under the Children's Law Act or the Family

Law Act against or affecting the applicant or respondent or a child and

may, where he or she considers it appropriate and where the judge is authorized

under the Act under which the order is made, vary, amend or rescind that order

in accordance with the Act under which the order is made to the extent

necessary in order to provide protection under the emergency protection order.

(7) Notice of the variation or termination of an

emergency protection order, in whole or in part, shall be served in the form

and manner prescribed by the rules of court.

Effect of

emergency protection order

(1) An

emergency protection order prevails over

(

a) a prior, subsisting order respecting custody

of or access to a child, including an order made under the Divorce Act (Canada) or

Part III of the Children's Law Act ; and

(

b) a provision of a subsisting agreement made

under

Part IV of the Family Law Act

respecting the custody of or access to a child,

but does not prevail over a prior,

subsisting order under the Child, Youth

and Family Services Act that places a child in the care or custody of a director

of child, youth and family services or a person other than the parent from whom

the child was removed.

(2) A provision in an emergency protection order

is subject to and may be varied by a provision in a subsequent order respecting

the same matter that is made under another Act or

an Act of the Parliament of

Canada made on the application of the same party.

(3) An application for, or the granting of, an

emergency protection order under this Act is in addition to and does not

diminish an existing right of action or remedy of the applicant or of another

person who is the subject of family violence.

Effect on

property and leasehold interest

(1) Except

as provided by paragraph 6(

g) or (j), an emergency protection order does not

affect the title to or an ownership interest in real property or personal

property jointly held by the applicant and respondent or solely held by one of

them.

(2) Where a residence is leased by a respondent

under an oral, written or implied agreement and an applicant who is not a party

to the lease is granted exclusive occupation of that residence, a landlord may

not evict the applicant solely on the basis that the applicant is not a party

to the lease.

(3) At the request of the applicant, the landlord

shall advise the applicant of the status of the lease and serve the applicant

with notice of a claim against the respondent arising from the lease and the

applicant at his or her option may assume the responsibilities of the

respondent under the lease for the duration of the emergency protection order.

Order directs

police officer

15. An

emergency protection order made under this Act is a direction binding on a

police officer to

(

a) give notice of the order to the respondent in

accordance with this Act and the rules of court; and

(

b) take necessary steps, which may include the

arrest of the respondent and the seizure of property, to enforce compliance

with the emergency protection order.

Confidentiality

(1) A

person shall not disclose to another person information in a court document or

record relating to a proceeding under this Act that identifies or is liable to

identify the home or business address of the applicant or a child of the

applicant unless the applicant or a person applying on behalf of the applicant

consents to the disclosure of the information or if the disclosure is necessary

to enforce the emergency protection order.

(2) The court may exclude the public from a

hearing, or a part of a hearing under this Act, where, in the opinion of the

judge, the possibility of an injustice, harm, hardship or adverse effect to or

upon a person outweighs the interest in a public proceeding.

(3) The court, by order,

(

a) shall prohibit the public disclosure of a

matter connected with an emergency protection order where the disclosure or

publication of the matter is prohibited by another Act or

an Act of the Parliament

of Canada or by a common law rule of confidentiality; and

(

b) may, at the request of the applicant or the

respondent, prohibit the public disclosure of a report of a hearing or a part

of a hearing or prohibit publication of a matter connected with an emergency

protection order where, in the opinion of the court, that disclosure or

publication would

(

i) not be in the best interests of the child; or

(ii) be likely to identify, have an adverse effect

on or cause hardship to, a person or child.

(4) An order under subsection (3) does not

prohibit access to court files with the consent of the court for research or

statistical purposes where there is no public disclosure of the name or other

information that could identify a person named in a report or hearing, or other

matter prohibited from being disclosed by an order made under this section.

(5) A person who contravenes an order under

subsection (3) is guilty of an offence and is liable on

summary conviction to

the penalties set out in

section 18.

Protection from

personal liability

17. An

action does not lie against a police officer, clerk or another person for loss

or damage suffered by a person because of anything in good faith done,

authorized to be done or authorized to be omitted by either of them

(

a) under or in the exercise of a power conferred

by this Act, the regulations or the rules of court; or

(

b) in the carrying out of a decision or order

made under this Act, the regulations or the rules of court, or a duty imposed

by this Act, the regulations or the rules of court.

Penalties

(1) A

person who

(

a) fails to comply with the provisions of an

order made under this Act;

(

b) knowingly makes a false statement in an

application or a hearing under this Act; or

(

c) obstructs a person performing a function

authorized by this Act or by an order under this Act

is guilty of an offence and upon

summary

conviction is liable, in the case of a first offence, to a fine of not more

than $2,000 or to imprisonment for a term of not more than 6 months, or to

both, and in the case of a second or subsequent offence, to a fine of not more

than $5,000 or to imprisonment for a term of not more than 12 months or to

both.

(2) A police officer may arrest without warrant a

person the police officer believes on reasonable and probable grounds to have

contravened a term of an emergency protection order.

Duty to report

continued

19. Nothing

in this Act affects a duty set out in

section 15 of the Child, Youth and Family Services Act .

Regulations

20. The

minister may make regulations

(

a) defining, enlarging or restricting the meaning

of a word or phrase used in this Act but not defined in this Act;

(

b) designating persons or classes of persons who

may make an application for an emergency protection order;

(

c) respecting the seizure, retention, return or

disposal of items required to be seized under a provision in an emergency protection

order;

(

d) respecting the collection of statistical data;

and

(

e) generally to give effect to the purpose of

this Act.

Commencement

21. This Act shall come into force on July 1, 2006 .

Earl G. Tucker, Queen's Printer