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
7.4 Notice of order[1]

4(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.

Reg

15 A respondent is bound by the provisions in an emergency intervention order as soon as he or she receives a copy of the order, whether or not it was personally served by a peace officer.

 

5(1) A respondent is not bound by any provisions in an emergency protection order until he or she has notice of the order.

(2) Notice of an emergency protection order shall be given in the prescribed form and manner.

(3) If, on application to a justice of the peace, it appears that

(a) attempts at service or substituted service of the notice on the respondent have failed; and

(b) the respondent is intentionally evading service, the justice of the peace may by order dispense with service of the notice and the respondent shall then be deemed to have notice of the emergency protection order. 1996, c.47, s.5.

Reg

26 Notice of a victim assistance order or order made pursuant to subsection 10(1) of the Act may be given to the respondent and to the victim

(a) by oral notice by the judge to any party present in court; or

(b) in any manner ordered by the judge to a party not present in court and pursuant to subsection 8(4) of the Act, a copy is to be provided immediately to a peace officer, to Victim Services and, where a child is identified on the order, to the Director of Child Welfare, (EC558/96; 210/99).

6(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.

(3) The court may order that notice of an order be given by substitutional service if reasonable efforts have not resulted in personal service or the respondent is evading or obstructing service.

(4) If an agent applied on behalf of the victim, the agent is responsible for serving documents in connection with the proceeding.

Reg

22(1) For the purposes of section 6 of the Act, notice of a victim’s assistance order or an order made pursuant to subsection 7(1) of the Act may be served on the respondent and the victim in a manner similar to those outlined in subsections 11(1), (2), and (3).

(2) Where, for any reason, personal service of notice of a victim assistance order on a respondent is impractical, substituted service may be effected by any of the methods specified in subsection 12(3).

5(1) A provision of a protection order is not effective in relation to a person unless the person has actual notice of the provision.

(2) Notice of the provisions

(a) of an emergency protection order must be given in accordance with the regulations, and

(b) of a Queen’s Bench protection order must be given in accordance with the Alberta Rules of Court.

Reg

9 For the purposes of section 5 of the Act, a respondent has actual notice of an emergency protection order if

(a) the respondent is personally served with a copy of the order, or

(b) there are other circumstances that, in the opinion of the court, provide the respondent with actual notice.

17 A protection order and a prevention order take effect on pronouncement, but a respondent is not bound by an order until he or she is given notice of it.
7.5 Confirmation of order[2]

5(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) is 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.

6(1) As soon as practicable after making an emergency protection order and in any event within two working days, the justice of the peace shall forward a copy of the order and all supporting documentation, including notes or tape recordings of the proceedings, to a judge in the prescribed manner.

(2) Within five working days of the receipt of the emergency protection order and all supporting documentation by the court, a judge shall review the order and where the judge is satisfied that there was sufficient evidence before the justice of the peace to support the making of the order, he or she shall

(a) confirm the order; or

(b) vary the order

and the order as confirmed or varied shall be deemed to be an order of the court.

(3) Where, on reviewing the emergency protection order, the judge is not satisfied that there was sufficient evidence before the justice of the peace to support the making of the order, the judge shall direct a rehearing of the matter in whole or in part before a judge.

(4) Where a judge directs that a matter be reheard,

(a) the Registrar shall issue a summons in the prescribed form requiring the respondent to appear before the court;

(b) the Registrar shall give notice of the rehearing to the victim and the victim is entitled to attend and may fully participate in the rehearing personally or by counsel;

(c) the Registrar shall give notice of the rehearing to a peace officer and to Victim Services in the areas where the alleged family violence occurred and the victim and respondent reside and the peace officer and a representative of Victim Services are entitled to attend the rehearing;

(d) the Registrar shall issue a subpoena to the applicant and the applicant is required to attend the rehearing; and

(e) where a child is identified on an emergency protection order, the Registrar shall give notice of the rehearing to the Director of Child Welfare.

(5) The evidence that was before the justice of the peace shall be considered as evidence at the rehearing.

(6) Where the respondent fails to attend the rehearing, the order may be confirmed in the respondent’s absence.

(7) At the rehearing, the judge may confirm, terminate or vary the order.

(8) The respondent is entitled to be heard and to examine and cross-examine witnesses at the rehearing.

(9) The court may issue a subpoena to the victim. 1996, c.47, s.6; 1998, c.11, s.3.

8(3) At a hearing or rehearing of an application for an emergency protection order or a victim assistance order or review of an emergency protection order or a victim assistance order, the standard of proof shall be on a balance of probabilities.

5(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 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) is deemed to be an order of the court granted on an ex parte application.

(4) Where, on reviewing the order and supporting documentation, the judge is not satisfied that there was evidence before the designated justice of the peace to justify granting the order, he or she shall direct a rehearing of the matter.

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

(a) the clerk of the court shall issue a summons, in the form and manner prescribed in the regulations, requiring the respondent to appear at the hearing 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) In addition to any other evidence, the evidence that was before the designated justice of the peace may 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, and may include an order for the preservation of privacy.

(10) Despite any other provision of this Act. an emergency intervention order continues in effect and is not stayed by a direction for a rehearing under this section.

2(6) An order under this section must indicate the date, time and place at which the order is scheduled for review at a hearing by a justice of the Court of Queen’s Bench, which may not be later than 7 working days after the granting of the order.

3(1) If a provincial court judge or a designated justice of the peace grants an emergency protection order, the judge or justice of the peace must, immediately after granting the order, forward to the

Court of Queen’s Bench a copy of the order and all supporting documentation, including any notes.

(2) A hearing referred to in section 2(6) must be based on affidavit evidence and any other sworn evidence.

(3) The evidence that was before the provincial court judge or designated justice of the peace may also be considered as evidence at the hearing.

(4) At the hearing, the justice of the Court of Queen’s Bench may, whether or not the claimant or the respondent is in attendance,

(a) revoke the order,

(b) direct that an oral hearing be held,

(c) confirm the order,
in which case the order becomes an order of the Court of Queen’s Bench, or

(d) revoke the order and grant an order under section 4.

      1998 cP‑19.253

10(1) A designated justice of the peace who grants a protection order shall immediately forward, in the manner prescribed by regulation, a copy of the order and each document submitted in support of the application to the nearest judicial centre of the court.

(2) A protection order and any document forwarded under subsection (1) shall be filed in the court, and when the order is filed it becomes an order of the court and is enforceable as such.

11(1) A respondent against whom a protection order is made may apply to the court within 20 days after being served with the order, or such further time as the court may allow, to have the order set aside.

(2) A protection order is not stayed by an application under subsection (1).

12(1) The judge hearing an application to set aside a protection order may confirm or set aside the order or may vary it by deleting clauses or by adding clauses from subsection 7(1) (content of protection order).

(2) At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside.

(3) The evidence that was before the designated justice of the peace shall be considered as evidence at the hearing, and the subject may present additional evidence.

(4) If the parties to a protection order indicate agreement that it should be set aside but the judge is not satisfied that the subject's agreement is freely and voluntarily given, the judge may adjourn the proceeding to allow the subject to obtain legal or other advice.

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