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
7. Order No.1 (Emergency Orders)  
7.1 Who gives order and what constitutes an emergency[1]

3(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 the immediate protection of the victim.

4(1) A justice of the peace, on the application of any person pursuant to subsection (6) in the prescribed form and without notice to any other person, may make an emergency protection order if he or she determines

(a) family violence has occurred; and

(b) the seriousness or urgency of the circumstances merits the making of an order.

4(1) An emergency intervention order may be granted ex parte by a designated justice of the peace where that designated justice of the peace has reasonable grounds to conclude that:

(a) family violence has occurred or is likely to occur; and

(b) by reason of seriousness or urgency, the order should be made forthwith in order to ensure the immediate protection of the victim.

2(1) An order under this section may be granted by a provincial court judge or a designated justice of the peace, on application without notice to the respondent, if the judge or justice of the peace determines

(a) that family violence has occurred, and

(b) that, by reason of seriousness or urgency, the order should be granted to ensure the immediate protection of the claimant.

4(1) Despite sections 42 (territorial jurisdiction) and 43 (exclusive jurisdiction) of The Court of Queen's Bench Act, an application for a protection order may be made to a designated justice of the peace without notice in the manner prescribed by regulation.

6(1) A designated justice of the peace may grant a protection order without notice where the justice determines on a balance of probabilities that

(a) the respondent is stalking the subject or subjecting him or her to domestic violence; and

(b) the subject believes that the respondent will continue the domestic violence or stalking.

(2) Where, but for mental incompetence or minority, a person would, in all the circumstances, reasonably believe that the respondent will continue the domestic violence or stalking, the person is conclusively deemed to have the belief referred to in clause (1)(b).

8 A designated justice of the peace who grants a protection order shall immediately arrange for the preparation of a written copy of it.
7.2 Factors considered[2]

3(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 the 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.

4(2) In determining whether to make an order the justice of the peace shall consider the following factors:

(a) the nature of the family violence;

(b) the history of family violence by the respondent towards the victim and whether it is more probable than not that the respondent will continue the family violence;

(c) the existence of immediate danger to the victim, other persons or property; and

(d) the best interests of the victim or any child or other person in the care of the victim.

4(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 the family violence;

(b) the history of family 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.

2(2) In determining whether an order should be granted, the provincial court judge or designated justice of the peace must consider, but is not limited to considering, the following:

(a) the nature of the family violence;

(b) the history of family violence by the respondent towards the claimant;

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

(d) the best interests of the claimant and any child of the claimant or any child who is in the care and custody of the claimant.
 
7.3 Provisions[3]

3(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(3) An emergency protection order may contain any or all of the following provisions:

(a) a provision granting the victim or other family members exclusive occupation of the residence for a defined period regardless of any legal rights of possession or ownership;

(b) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time;

(c) a provision directing a peace officer to accompany a specified person, within a specified time, to the residence to supervise the removal of personal belongings;

(d) a provision restraining the respondent from directly or indirectly communicating with the victim or other specified person;

(e) a provision requiring the respondent to stay away from any place identified specifically or generally in the order;

(f) a provision awarding temporary care and custody or day-to-day care of a child to the victim or some other person;

(g) a provision granting temporary possession of specified personal property, including an automobile, cheque book, bank card, health services card or supplementary medical insurance cards, identification documents, keys, or other personal effects;

(h) a provision restraining the respondent from taking, converting, damaging or otherwise dealing with property;

(i) a provision restraining the respondent from committing any further acts of family violence against the victim;

(j) a provision prohibiting the publication of the name and address of the victim;

(k) any other provision that the justice of the peace considers necessary to provide for the immediate protection of the victim.

4(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 communication with or contacting the victim and other specified persons;

(e) a provision requiring the respondent to surrender all firearms in their possession to a peace officer for whatever period up to 180 days that the justice decides; or, where a firearm has been used or its use threatened, the justice shall require the respondent to surrender all firearms in their possession to a peace officer for whatever period up to 180 days that the justice decides;

(f) any other provision that the designated justice of the peace considers necessary to provide for the immediate protection of the victim.

2(3) An order under this section may include any or all of the following:

(a) a provision restraining the respondent from attending at or near or entering any specified place that is attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members;

(b) a provision restraining the respondent from communicating with or contacting the claimant and other specified persons;

(c) a provision granting the claimant and other family members exclusive occupation of the residence for a specified period, regardless of whether the residence is jointly owned or leased by the parties or solely owned or leased by one of the parties;

(d) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time;

(e) a provision directing a peace officer to accompany a specified person to the residence within a specified time to supervise the removal of personal belongings in order to ensure the protection of the claimant;

(f) a provision directing the seizure and storage of weapons where the weapons have been used or have been threatened to be used to commit family violence;

(g) any other provision that the provincial court judge or designated justice of the peace considers necessary to provide for the immediate protection of the claimant.

 

7(1) A protection order granted under subsection 6(1) may include any of the following provisions that the designated justice of the peace considers necessary or advisable for the immediate protection of the subject:

(a) a provision prohibiting the respondent from following the subject or a specified person from place to place;

(b) a provision prohibiting the respondent from communicating with or contacting the subject or a specified person; (c)a provision prohibiting the respondent from attending at or near, or entering, any place that the subject or a specified person happens to be or

attends regularly, which may include a place where the subject or person resides, works or carries on business;

(d) a provision directing a peace officer to remove, immediately or within a specified time, the respondent from the residence;

(e) a provision granting the subject or respondent temporary possession of necessary personal effects;

(f) a provision directing a peace officer to accompany, within a specified time, a specified person to the residence to supervise the removal of necessary personal effects in a safe and orderly manner;

(g) a provision directing the respondent to deliver up to a peace officer, until a further order is made under the Criminal Code (Canada), the Firearms Act (Canada) or this Act,

(i) any firearm, weapon, ammunition or explosive substance that the respondent owns, possesses or controls, and

(ii) any document that authorizes the respondent to own, possess or control an item referred to in subclause (i);

(h )when an order includes a provision under clause 

(g), a provision that, if the respondent does not deliver up the items referred to in the order, a peace officer may for the purpose of seizing the items enter and search any place where the officer has reason to believe the items are located, with such assistance and force as are reasonable in the circumstances.

(2) An item delivered up under clause (1)(g) or seized under clause (1)(h) must be dealt with in accordance with the regulations.

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