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S.M. 1998, c. 41
THE DOMESTIC VIOLENCE AND STALKING PREVENTION, PROTECTION AND COMPENSATION AND CONSEQUENTIAL AMENDMENTS ACT
(Assented to June 29, 1998)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
DEFINITIONS AND INTERPRETATION
In this Act,
"cohabitants" means
(a) persons who reside together or have resided together in a family, spousal or intimate relationship, or
(b) the persons who are the biological or adoptive parents of a child, regardless of their marital status or whether they have lived together at any time; (« cohabitants »)
"court" means the Court of Queen's Bench of Manitoba; (« tribunal »)
"designated justice of the peace" means a justice of the peace or magistrate designated under section 3; (« juge de paix désigné »)
"prevention order" means an order made under subsection 14(1); (« ordonnance de prévention »)
"protection order" means an order made under subsection 6(1); (« ordonnance de protection »)
"residence" means the place where a subject normally resides, and includes a residence that a subject vacates owing to domestic violence or stalking; (« résidence »)
"respondent" means a person in respect of whom a subject applies for a protection order or prevention order; (« intimé »)
"specified person" includes a person who is a member of a group of persons specified in a protection order or prevention order; (« personne désignée »)
"subject" means a person who applies for a protection order or a prevention order; (« victime »)
"telecommunication" includes the use of a telephone, electronic mail or the telephone transmission of a facsimile of a document. (« télécommunication »)
Meaning of "domestic violence"
Domestic violence occurs when a person is subjected by a cohabitant of the person to
(a) an intentional, reckless or threatened act or omission that causes bodily harm or damage to property;
(b) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;
(c) conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse;
(d) forced confinement; or
(e) sexual abuse.
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 conduct referred to in subsection (2) includes the person
(a) following from place to place the other person or anyone known to the other person;
(b) communicating directly or indirectly with or contacting the other person or anyone known to the other person;
(c) besetting or watching any place where the other person, or anyone known to the other person, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or anyone known to the other person.
Certain persons deemed to have fear
Where, but for mental incompetence or minority, a person would reasonably, in all the circumstances, fear for his or her safety owing to conduct referred to in subsection (2), the person is conclusively deemed to have the fear referred to in that subsection.
PROTECTION ORDERS BY DESIGNATED JUSTICES OF THE PEACE
Designation of J.P.s and magistrates
The Chief Judge of the Provincial Court of Manitoba may designate justices of the peace and magistrates to hear and determine applications for protection orders under this Act.
Application for protection order
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.
How an application may be submitted
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.
Evidence to be given under oath
Evidence adduced in support of an application for a protection order must be given under oath.
Telecommunication of sworn documents used in evidence
A lawyer or peace officer submitting an application for a protection order by telecommunication must
(a) at the time possess any document that is to be used in support of the application;
(b) communicate the content of the document to the designated justice of the peace in a manner satisfactory to the justice; and
(c) transmit the document to the designated justice of the peace as soon as practicable in the manner prescribed by regulation.
Evidence received by telephone
The designated justice of the peace may administer an oath to a person and receive the person's evidence by telephone if the oath and evidence are recorded verbatim.
J.P. not to wait for transmission
A designated justice of the peace who hears an application for a protection order need not wait for the transmission of a document under clause (1)(c) before deciding whether to make a protection order.
Effect of order based on telecommunication
A protection order based on an application submitted by telecommunication has the same effect as a protection order based on an application submitted in person.
Granting of protection order without notice
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.
Certain persons deemed to have belief
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).
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.
Dealing with items delivered up or seized
An item delivered up under clause (1)(g) or seized under clause (1)(h) must be dealt with in accordance with the regulations.
J.P. to arrange for written copy of order
A designated justice of the peace who grants a protection order shall immediately arrange for the preparation of a written copy of it.
A protection order must be served in the manner prescribed by regulation.
J.P. to forward documents to Q.B.
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.
Enforcement of protection order filed in Q.B.
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.
Application to set aside order
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.
Application does not stay order
A protection order is not stayed by an application under subsection (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).
At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside.
Use of evidence from application for order
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.
Adjournment to allow subject to obtain advice
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.
Ban on identification of party or witness
No person shall publish or broadcast in a media report the name of a person who is a party or witness in proceedings relating to an application for a protection order or any information likely to identify the person, until the latest of the following:
(a) dismissal of the application by the designated justice of the peace;
(b) 20 days after service upon the respondent of the protection order granted by the designated justice of the peace;
(c) where an application is made to the court under subsection 11(1) within 20 days after the respondent is served with the order, determination of the application by the court.
A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction
(a) in the case of an individual, to a fine of not more than $5,000. or imprisonment for a term of not more than two years, or both; and
(b) in the case of a corporation, to a fine of not more than $50,000.
Corporate officers and directors
An officer, director, employee or agent of a corporation who directs, authorizes, assents to, permits or participates or acquiesces in an offence by the corporation under subsection (1) may be convicted of the offence, whether or not the corporation has been prosecuted or convicted.
PREVENTION ORDERS BY COURT OF QUEEN'S BENCH
Where, on application, the court determines that the respondent has stalked the subject or subjected him or her to domestic violence, the court may make a prevention order with any terms or conditions it considers appropriate to protect the subject or remedy the domestic violence or stalking, which may include any of the following:
(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 regularly attends, which may include a place where the subject or person resides, works or carries on business;
(d) subject to any order made under section 13 of The Family Maintenance Act, a provision granting the subject temporary exclusive occupation of the residence, regardless of ownership;
(e) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time;
(f) subject to any order made under The Marital Property Act, a provision granting either party temporary possession of specified personal property, which may include vehicles, household furnishings, clothing, medical insurance cards, identification documents and keys;
(g) a provision directing a peace officer to accompany, within a specified time, a specified person to the residence to supervise the removal, in a safe and orderly manner, of personal property owned by a party or granted to him or her under clause (f);
(h) a provision directing the respondent to deliver up to a peace officer, until a further order 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);
(i) when an order includes a provision under clause (h), 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;
(j) a provision requiring the respondent to pay compensation to the subject for any monetary loss suffered by the subject as a result of the domestic violence or stalking, which may include
(i) loss of income,
(ii) expenses relating to new accommodations, moving, counselling, therapy, medicine and other medical requirements, and security measures, and
(iii) legal fees and other costs relating to making an application under this Act;
(k) a provision prohibiting the respondent from taking, converting, damaging or otherwise dealing with any property in which the subject has an interest;
(l) a provision authorizing the seizure, until further order of the court, of any personal property of the respondent used in furtherance of the domestic violence or stalking;
(m) a provision recommending that the respondent receive counselling or therapy;
(n) a provision requiring the respondent to post a bond, with or without sureties or a cash deposit, in an amount the court considers appropriate to secure the respondent's compliance with the order;
(o) if the subject and respondent reside or have resided in the same premises, a provision prohibiting the respondent from entering upon the premises while the subject is residing there;
(p) if an order has been made under clause 10(1)(c) (no entry to spouse's premises) or (d) (non-molestation) of The Family Maintenance Act by a judge of the court, a provision revoking that part of the order.
Order re sole occupancy of residence
Where an order includes a provision under clause (1)(d), section 13 (occupancy of family residence) of The Family Maintenance Act applies with necessary modifications.
Dealing with items delivered up or seized
An item delivered up or seized pursuant to a prevention order must be dealt with in accordance with the regulations.
Suspension under The Highway Traffic Act
Where a respondent has notice that an application for a prevention order includes a request for a provision under this section and the judge making the order is satisfied that the respondent has operated a motor vehicle to further the domestic violence or stalking, the judge may include a provision that, until further order of the court,
(a) any licence or permit issued to the respondent under The Highway Traffic Act be suspended under that Act; and
(b) the respondent be disqualified from
(i) applying for or holding a licence or permit under that Act, and
(ii) operating a motor vehicle.
Impoundment of licence or permit by court
If the respondent is present in court when an order is made under subsection (1), the court shall impound
(a) the licence or permit, where it consists of one part; or
(b) where the licence or permit consists of a photo identification card and a licence certificate, the licence certificate only.
Where respondent does not have notice
If the respondent does not have notice that an application for a prevention order includes a request for a provision under this section and the judge making the order is satisfied that the respondent has operated a motor vehicle to further the domestic violence or stalking, the judge may include a provision that, until further order of the court, no licence or permit be issued or renewed in the respondent's name.
Court to send certificate to registrar
Where a judge includes in a prevention order a provision made pursuant to subsection (1) or (3), the court shall send to the registrar, as defined in The Highway Traffic Act,
(a) a certificate in the form prescribed by regulation; and
(b) in the case of a provision made pursuant to subsection (1), any licence or permit impounded under subsection (2).
Notice of order terminating provision
Where a judge orders that a provision in a prevention order made pursuant to subsection (1) or (3) be terminated, the court shall send to the registrar a certificate in the form prescribed by regulation.
Interim prevention order, with notice
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.
Order may be made without notice
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.
GENERAL PROVISIONS
Respondent bound when given notice
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.
Effect of orders on property interests
A protection order and a prevention order do not in any manner affect the title to or an ownership interest in real property or personal property held by the parties to the order or by one of the parties.
Court may vary or revoke order
The court, on application at any time after a protection order is filed in the court under subsection 10(2) or a prevention order is made under subsection 14(1), may, if satisfied that it is fit and just to do so,
(a) delete or vary any term or condition in the order, or add terms and conditions, which may include any provision mentioned in clauses 14(1)(a) to (p); or
(b) revoke the order.
Adjournment to allow subject to obtain advice
If the parties to a protection order or prevention order indicate agreement that it should be varied or revoked 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.
Certain information to be kept confidential
No person shall disclose to another person any 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 a subject, other than information contained in the application for a protection order or prevention order or in the order, or that is necessary to enforce the order.
Court may ban publication of certain information
On the request of a subject or witness in a proceeding relating to a protection order or prevention order, the court may make an order prohibiting the publication or broadcast in a media report of the name of a party or witness or any information likely to identify the subject or witness, if the court is satisfied that the publication or broadcast could endanger the safety or well being of the subject or witness.
A person who contravenes an order made under subsection (1) is guilty of an offence and is liable on summary conviction to the penalties set out in clauses 13(2)(a) and (b).
Corporate officers and directors
An officer, director, employee or agent of a corporation who directs, authorizes, assents to, permits or participates or acquiesces in an offence by the corporation under subsection (1) may be convicted of the offence, whether or not the corporation has been prosecuted or convicted.
Subject to advise court of any order or agreement
In a proceeding relating to 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.
Peace officer may assist in identification
A peace officer who has reason to believe that a person is being stalked and can identify the person who is stalking or is suspected of stalking may, upon the request of the person being stalked, disclose to him or her the name of the other person, and any additional information necessary to identify the other person, for the purpose of facilitating an application for a protection order or prevention order under this Act.
No action or proceeding may be commenced against a peace officer who provides information under subsection (1) in good faith.
Other right of action not affected
Subject to subsection (2), a right of action or a remedy under this Act is in addition to, and does not affect, any other right of action or remedy available to a person other than under this Act.
When assessing damages or compensation in an action or proceeding arising out of domestic violence or stalking that is the subject of another action or proceeding, a court shall have regard to any damages or compensation awarded in the other action or proceeding in respect of the same behaviour.
Appeal of Q.B. order to Court of Appeal
A party to a prevention order or an order made by a judge of the Court of Queen's Bench in respect of a protection order may, within 30 days after the order is made or within such further time as a judge of the Court of Appeal may allow, appeal the order to the Court of Appeal on a question of law or jurisdiction.
An appeal does not operate as a stay of proceedings, and the order under appeal may be enforced as though no appeal were pending unless a judge of the Court of Queen's Bench or a judge of the Court of Appeal otherwise orders.
TORT OF STALKING
A person who stalks another person commits a tort against that person.
Action without proof of damages
An action may be brought under subsection (1) without proof of damages.
REGULATIONS
The Lieutenant Governor in Council may make regulations
(a) respecting the procedures to be followed for making application and for hearing applications for protection orders, including the transmission of applications for protection orders;
(b) respecting forms, including information to be contained on the form of protection orders and prevention orders;
(c) for the purpose of subsection 10(1), respecting the forwarding of protection orders and other documents to the court by designated justices of the peace;
(d) for the purpose of sections 11 and 12, respecting the procedures to be followed for making application to set aside protection orders and for hearing those applications;
(e) respecting the handling, storage and disposition of items delivered up or seized pursuant to a protection order or prevention order;
(f) respecting the form and manner of serving notices and other documents required to be served or given under this Act, including substitutional service and a rebuttable presumption of service;
(g) for the purpose of clause 14(1)(n), respecting the posting of bonds;
(h) respecting certificates under subsections 15(4) and (5) (notice to registrar);
(i) defining a word or expression used and not defined in this Act;
(j) enlarging or restricting the meaning of a word or expression used in this Act;
(k) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.
CONSEQUENTIAL AMENDMENTS
The Court of Queen's Bench Act
The definition "family proceeding" in section 41 of The Court of Queen's Bench Act is amended by adding the following after clause (u):
(v) The Domestic Violence and Stalking Prevention, Protection and Compensation Act in respect of cohabitants, as defined in that Act, other than an action under section 26 (tort of stalking) of that Act.
The Family Maintenance Act
The Family Maintenance Act is amended by this section.
Subsection 10(1) is amended
(a) by repealing clauses (c) and (d); and
(b) by adding the following after clause (i):
(j) That communication and contact between the spouses be prohibited or restricted.
The following is added after section 10:
Transitional re clauses 10(1)(c) and (d) and Division 2 of Part V
Despite the repeal of clauses 10(1)(c) (no entry to spouse's premises) and (d) (non-molestation) and Division 2 (non-molestation order by magistrate) of Part V,
(a) an application for an order under any of those provisions made before this section comes into force may be continued as if those provisions remain in force; and
(b) a provision of an order or interim order made under those provisions continues in force and may be revoked or varied under this Act to delete those provisions, but may not be otherwise varied.
Effect of order under Domestic Violence Act on order made under clause 10(1)(d)
Despite subsection (1), when a protection order or prevention order is made under The Domestic Violence and Stalking Prevention, Protection and Compensation Act in respect of persons who are also parties to an order under this Act that includes a provision made under clause 10(1)(d) of this Act,
(a) if the order was made by a designated magistrate pursuant to Division 2 of Part V, the order is revoked; and
(b) if the order was made by a judge of the Provincial Court, that provision of the order is revoked.
Subsection 14(2) is amended by striking out "under this Part containing a provision of the kind mentioned in clause 10(1)(c) or (d)" and substituting "under this Part to include a provision under clause 10(1)(j)".
Subsection 40.1 is amended by striking out everything after "Act".
Subsection 41(2) is amended by striking out "clause 10(1)(c) or".
Division 2 (non-molestation order by magistrate) of Part V is repealed.
Subsection 50(1.1) is amended by striking out "A person" and substituting "Despite the repeal of clauses 10(1)(c) and (d) and Division 2 (non-molestation order by magistrate) of Part V, a person".
The Highway Traffic Act
The Highway Traffic Act is amended by this section.
The following is added after subsection 258(2):
Suspension of licence or permit not surrendered
If a person who is required under this or any other Act to surrender or deliver a licence or permit does not do so, the licence or permit is nevertheless suspended.
Subsection 259(1) is amended
(a) in clause (a), by adding "or her" after "him"; and
(b) in clause (b), by adding "judge or" after "made by the".
The following is added after section 273.3:
Suspension under Domestic Violence Act
Notwithstanding the provisions of this Act respecting notice, where the registrar receives a certificate pursuant to subsections 15(1) (suspension and disqualification) and (4) (certificate) of The Domestic Violence and Stalking Prevention, Protection and Compensation Act, the registrar shall without notice to the person named in the certificate
(a) suspend any licence or permit issued to the person under this Act;
(b) refuse to issue or renew any licence or permit in the name of the person; and
(c) disqualify the person from applying for or holding a licence or permit and operating a motor vehicle;
until the registrar receives notice under subsection 15(5) (termination of suspension and disqualification) of that Act.
Action where person does not have notice
Where the registrar receives a certificate pursuant to subsections 15(3) (where respondent does not have notice) and (4) (certificate) of The Domestic Violence and Stalking Prevention, Protection and Compensation Act, the registrar shall refuse to issue or renew any licence or permit to the person named in the certificate until the registrar receives notice under subsection 15(5) of that Act.
Subsection 279(1.3) is amended
(a) in the section heading, by striking out "273.3" and substituting "273.5"; and
(b) in the subsection, by striking out "section 273.1, 273.2 or 273.3" and substituting "section 273.1 or 273.2 (default in maintenance), section 273.3 (alternative measures), or section 273.4 or 273.5 (Domestic Violence Act)".
The Marital Property Act
The Marital Property Act is amended by this section.
Clause 6(2)(b) is amended by striking out "matrimonial cause" and substituting "family proceeding".
Subsection 6(3) is amended by adding the following at the end:
, subject to any order made in respect of the asset under
(a) clause 17(b);
(b) subsection 18.1(1); or
(c) The Domestic Violence and Stalking Prevention, Protection and Compensation Act.
Section 17 is amended by adding ", taking into account the effect of any interim order made under section 18.1" at the end.
Subsection 18.1(1) is amended by adding ", including payment of an amount in a lump sum or by instalments and the transfer, conveyance or delivery of an asset or assets in lieu of the amount" at the end.
C.C.S.M. REFERENCE AND COMING INTO FORCE
This Act may be cited as The Domestic Violence and Stalking Prevention, Protection and Compensation Act and referred to as chapter D93 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.