Review of Provincial and Territorial Domestic Violence Legislation and Implementation Strategies

PART II. A COMPARISON OF KEY CLAUSES OF DOMESTIC VIOLENCE ACTS AND REGULATIONS

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Table 1 . A Comparison of Key Clauses of Domestic Violence Acts and Regulations (cont'd)
Item Compared Jurisdiction
Saskatchewan PEI Yukon Alberta Manitoba
9. Application for an Order[1] 8(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 of probabilities. Reg 4(1) An application for an emergency intervention order must be made in personby: (a) a victim; or (b) a person on behalf of the victim with leave of the justice.(2) An application for an emergency intervention order by a designated personmay be made in person or by telecommunication. (3) An order based on a telecommunication application has the same effect as anorder based on an application made in person.2 Dec 94 cV-6.02 Reg 1 s4. 4(6) An application for an emergency protection order may be made by (a) a victim; (b) a member of a category of persons designated in the regulations on behalf of, and with the consent of, the victim; or (c) if a victim is incapable of giving consent, any person on behalf of the victim with leave of the justice of the peace. (7) An application for an emergency protection order may be made by telecommunication. 1996, c.47, s.4; 1998,c.11,s.2. Reg 4 (1) An application for an emergency protection order by(a) a victim; or (b) a person acting on behalf of a victim with leave of a justice of the peace,must be made in person. (2) an application for an emergency protection order by a designated person may be made in person orby telecommunication. (3) An order based on a telecommunication application has the same effect as an order based on an application made in person. (EC558/96). 19 (1) An application for a victim assistance order shall consist of(a) the application in the form prescribed in Schedule 5; (b) the Notice of Application in the form prescribed in Schedule 6, to be issued by the Registrar; (c) the applicant’s record; and(d) the applicant’s factum.(2) The applicant’s record shall contain, in consecutively numbered pages arranged in the following order: (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, number; (b) a copy of all affidavits in the form prescribed in Schedule 7, and any other material to be used by the applicant on the application; (c) a list of the dates of all, if any, previous hearings between the parties resulting in orders under the Act;(d) a copy of any other material that is necessary for the hearing of the application; and (e) a memorandum of authorities listing any relevant case law, statute and regulation that the applicant intends to rely on or refer to, if applicable.(3) The applicant’s factum shall consist of a concise statement, without argument, of the facts and law relied on by the applicant. (EC558/96). 20(1) The applicant shall file three copies of the completed application form, applicant’s record, and applicant’s factum with the Registrar. (2) The Registrar shall commence the originating process by issuing the Notice of Application. (3) The Notice of Application shall be issued by the Registrar’s act of dating, signing, and sealing it with the seal of the court and assigning to it a court file number. (4) The Registrar shall file one copy of the application, including the Notice of Application when issued, in the court file and shall return one copy to the applicant. (5) The Registrar shall obtain a copy of(a) all relevant information from the hearings listed in the application record; and(b)transcripts of any hearings listed in the application record where the transcript has already been prepared and place them in the court file. (6) Where a written transcript of a previous hearing has not already been prepared and it is impractical to obtain it in a timely manner, the Registrar may place the tape of the hearing in the court file and a transcript, if necessary, may be ordered by the judge. (7) The Registrar shall make the court file available for the court’s use. (EC558/96). 2 (1) The following persons may apply for an order under this Act: (a) a victim; (b) a member of a category of persons authorized by the regulations to apply on behalf of a victim with the victim's consent, or(c) any other person on behalf of the victim with leave of a judge of the Supreme Court or of a designated justice of the peace, where the nature of the family violence gives reasonable ground to believe that another person should be allowed to apply on behalf of the victim. (2) Applications must be made in person by the applicant appearing before a designated justice of the peace, unless no designated justice of the peace is readily available.(3) If no designated justice is readily available to hear the application in person, then the application may be made to a designated justice of the peace by Telecommunication, and a facsimile order appearing to have been signed by the justice of the peace is as effective as the original document signed by the justice.(4) The documents in support of an application must be prepared and used substantially as prescribed by the regulations, or as directed by a designated justice if no regulation directs what is to be done.(5) At the hearing of an application for an order, the standard of proof is to be on a balance of probabilities. Reg 1(3) For the purposes of subsection 2(2) of the Act,“readily available” means a justice of the peace (a) is in attendance at court during the hours of operation during a working day, and (b) is available to hear an application for an order pursuant to the Act within two hours of initial contact.(4) For the purposes of the Act, “working day” means any day on which the courts registry in the YukonTerritory are open for operation. 4 No fees for the filing or service of documents shallbe charged to an applicant. 18(1) An application for a victim’s assistance order shall be accompanied by an affidavit in which the applicant states concisely the facts and the law relied on by the applicant. (2) The applicant shall file three copies of the completed application form and the applicant’s affidavit with the clerk of the court.(3) The clerk of the court shall set a hearing date for the application and note that date on the application.(4) The clerk of the court shall file the application in the court file and shall return one copy to the applicant. 21(1) The applicant may abandon an application by delivering a notice of abandonment. (2) An applicant who fails to appear at a hearing shall be deemed to have abandoned the application unless the court orders otherwise. (3) Where an application is abandoned or is deemed to have been abandoned, a respondent on whom the notice of application was served is not entitled to the costs of the application, unless the court orders otherwise. 6(1) An application for a protection order may be made (a) by a person who claims to have been the subject of family violence by a family member, (b) on behalf of a person referred to in clause (a), with that person’s consent, by a person or a member of a category of persons designated in the regulations, or(c) by any other person on behalf of a person referred to in clause (a), with leave of the judge. (2) An application for an emergency protection order must be made in accordance with the regulations, and may be made by telecommunication.(3) Unless this Act otherwise provides, notice of an application under this Act must be given to the respondent or claimant, as the case may be.(4) An application to the Court of Queen’s Benchunder this Act must be made by originating notice unless it is further to proceedings that have been commenced. 1998 cP19.2 Reg 4(1) An application for an emergency protection order must be made in person by(a) a claimant, or(b) a person who has the leave of a judge to make an application on behalf of a claimant.(2) An application for an emergency protection order by a designated person may be made in person or by telecommunication.(3) An order based on a telecommunication application has the same effect as an order based on an application made in person. 4(2) An application for a protection order may be submitted(a)in person, by the subject;(b)in person, by a lawyer or peace officer with the subject's consent; or(c)by telecommunication, by a lawyer or peace officer with the subject's consent and in accordance with section 5. 16(1) The court may at any time after an application for a prevention order is made, on the motion of a party to the application and on notice to the other party, make an interim prevention order on terms and conditions that the court considers fit and just.(2) The court may make an order under subsection (1) on a motion without notice if the court is satisfied that it is necessary or advisable to do so to ensure the safety of the subject. 22 In a proceeding relatingto an application for a protection order or prevention order, the subject must disclose to the designated justice of the peace or the court the details of any order or agreement to which the subject and respondent are parties, including (a) an order or agreement respecting custody or access;(b)an order obtained under clauses 10(1)(c) (no entry to spouse's premises) or (d) (non-molestation) of The Family Maintenance Act; and (c) a protection order or prevention order obtained under this Act. Reg 2 An application must be made in writing and contain the following information: (a) the name of the subject; (b )the name of the respondent; (c) if the subject has a lawyer for the purpose of the application, the lawyer's name; (d) a statement that the subject requests a protection order under the Act; (e) the subject's consent to the application, if the application is submitted by a lawyer or peace officer. 4 A lawyer or peace officer who submits an application must provide any identifying information requested by the designated justice of the peace hearing the application, which may include the name and business or employment address of the lawyer or peace officer, and any other information required to identify or contact him or her. 7(1) If the subject is a minor, an adult person may make an application on behalf of the subject. 8 An application made on behalf of a subject (a) by a committee appointed under The Mental Health Act; or (b) by a substitute decision maker for personal care or a substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act;with authority to make an application under this Act, must be supported by a sworn document or sworn testimony that sets out, in addition to the requirements of subsection 3 (1), particulars of the appointment and authority. 9 A person who makes an application to a designated justice of the peace for a protection order on behalf of a subject may do so without retaining and instructing a lawyer. 10 A lawyer or peace officer submitting an application by telecommunication shall (a) provide a copy of the application and any supporting documents to the designated justice of the peace by telephone transmission of a facsimile or by delivery in another way specified by the justice; and (b) deliver the original copy of the application and supporting documents to a court office specified by the designated justice of the peace who hears the application.11(1) A lawyer or peace officer who submits an application by telecommunication, or in person when the subject is not present, shall give the subject a copy of the application, supporting documents and any protection order that is granted as soon as practicable after the application is determined.(2) Despite subsection (1), when an application is made by a person on behalf of a subject referred to in section 7 (minor) or 8 (person with committee or substitute decision maker), the lawyer or peace officer shall give the documents referred to in subsection (1) to the person.

Comment [1]: These sections may apply to a protection order or prevention (victim assistance) order, or both, depending on the jurisdiction. The three categories of applicants are consistent across jurisdictions, although Manitoba is slightly more restrictive. The category of persons who can apply using telecommunications (as opposed to “in person”) varies. Except in limited circumstances, applications on behalf of the victim require the victim’s consent. The more detailed filing requirements usually refer to prevention (victim assistance) orders.

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