The Fishman Beley Family Law Primer
Family Law 101
Prevention and Protection Orders
Legislation
The Domestic Violence and Stalking Act came into force on September 30, 1999, replacing the old provisions for restraining orders. In addition to providing a quick remedy for victims of stalking or domestic violence, the statute also provides for the new tort of stalking and the ability of the court to award damages for that intentional wrong.
The victim of familial abuse can be a spouse, common-law partner, or even someone who has been in a family or dating relationship, whether or not they lived together.
There are a number of resources available to assist victims of stalking and abuse. Start with the provincial government site by clicking here.
What Is Domestic Violence?
Domestic violence can be:
- An intentional, reckless or threatened act or omission that causes bodily harm or property damage;
- An intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damage;
- Conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse;
- Forced confinement;
- Sexual abuse.
What Is Stalking?
Stalking is defined as:
Stalking occurs when a person, without lawful excuse or authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, repeatedly engages in conduct that causes the other person reasonably, in all the circumstances, to fear for his or her own safety.
The applicant must show that the conduct has been repetitive. The statute provides that the test is objective and that if proven the victim is deemed to be in fear.
Protection Orders
A protection order is available, without notice to the alleged offender, on application by a victim to a provincial judge or magistrate. There is in Winnipeg a duty Justice of the Peace or magistrate who will deal with these applications at any time. The alleged victim will complete an application and then provide evidence orally under oath. There is also provision for the application to be submitted by telephone or with the assistance of a police officer or lawyer and other classes of persons.
The Justice of the Peace will grant an order, upon accepting that the applicant has a "reasonable belief" that the domestic violence or stalking will continue.
The applicant must show the magistrate that he or she has been subjected to domestic violence or stalking.
Typically, the terms of the Protection Order may include provisions to:
- Prohibit the respondent from attending at the applicant's residence, place of employment or other specified places
- Prohibit the respondent from following, from communicating or contacting the applicant,
- Deal with the possession of personal effects
- Authorize a peace officer to remove the respondent from premises or to ensure the orderly removal of personal effects
- Require the respondent to deliver weapons to the police
- Allow the police to search for and seize weapons
The order will have a 3-year limit, unless the magistrate feels it should extend longer. A subsequent application to extend the order can be made. The Order can contain a requirement that the respondent receive counseling or therapy. The order may also contain a publication ban to protect the well-being of children.
Provisions may be included in the order to allow the parties to attend legal proceedings and mediation under conditions.
Prevention Orders
Prevention orders are granted by the Judges of the Court of King's Bench and in addition to the protective relief available from the Justice of the Peace set out above, may include additional provisions, such as:
- Sole occupancy of the family residence
- Temporary possession of specified personal property
- Seizure of items used in furtherance of the violence or stalking
- Recommending the respondent receive counselling
- Prohibiting the respondent from damaging or otherwise dealing with property in which the applicant has an interest
Police Enforcement
Protection and prevention orders are now recorded on the CPIC registry which is kept and updated by the police who, in line with the province’s "zero tolerance" policy, will enforce these orders.
Once the order is in effect, it cannot not be altered by the mere agreement of the parties. Many persons have discovered much to their surprise, after an attempted reconciliation has gone sour, that an old order is still effective and can find themselves facing criminal charges.
The police will enforce breaches of Protection and Prevention Orders and will lay charges in appropriate circumstances. When charges are laid, the court has a support system to assist victims, the Women's Advocacy program. Charges are not easily withdrawn.
Other Protection for Victims of Abuse
Other procedures exist to protect the victims of abuse. The Winnipeg Land Titles Offices, for example, will allow the registration of a land title document without the necessity of disclosing a civic address, as a means of preventing easy location of a stalking victim, for example.
The Tort of Stalking
A tort is an intentional or unintentional wrong that is compensable in damages. Previously, to obtain damages for stalking the applicant had to prove that it was part of the tort of battery (assault).
The tort of stalking has been created by the new legislation and may lead upon proof to damages for loss of income, expenses relating to the tort, such as accommodations, counseling or therapy, medicine and security measures, and legal fees and costs relative to the application.
