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SNL2005 CHAPTER F-3.1

FAMILY VIOLENCE PROTECTION ACT

Amended:

2006 c40 s7; 2009 c16 s9; 2012 c9;
2013 cA-3.1 s86

CHAPTER F-3.1

AN ACT RESPECTING PROTECTION AGAINST FAMILY VIOLENCE

(Assented to December 13, 2005 )

Analysis




Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Family Violence Protection Act .

2005 cF-3.1 s1

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Definitions

        2. In this Act

             (a)  "applicant" means a person referred to in subsection 4(1)

                      (i)  who applies for an emergency protection order,

                     (ii)  on whose behalf an application is made for an emergency protection order, or

                    (iii)  who is granted an emergency protection order;

             (b)  "child" means a child born within or outside marriage who ordinarily or periodically resides with the applicant and is under the age of 19 years and unmarried and includes

                      (i)  a child adopted under the Adoption Act, 2013 ,

                     (ii)  a child whom the applicant has demonstrated a settled intention to treat as a child of his or her family, and

                    (iii)  a child in the actual care and custody of the applicant;

             (c)  "clerk" includes a clerk acting under the Criminal Code and the Youth Criminal Justice Act (Canada ) and a person who performs the duties of a clerk of the court;

             (d)  "court", except as otherwise provided, means the Provincial Court of Newfoundland and Labrador ;

             (e)  "emergency protection order" means an order granted under section 5;

             (f)  "family violence" means an act or omission described in subsection 3(1);

             (g)  "judge", except as otherwise provided, means a Provincial Court judge appointed under the Provincial Court Act, 1991 and includes the chief judge;

             (h)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

              (i)  "police officer" means

                      (i)  a member of the Royal Newfoundland Constabulary, and

                     (ii)  a member of the Royal Canadian Mounted Police Force stationed in the province;

              (j)  "property" means an interest, present or future, vested or contingent, in real or personal property, including companion animals, and includes property that

                      (i)  a person owns, or

                     (ii)  a person does not own but

                            (A)  uses or enjoys,

                            (B)  is available for the person's use or enjoyment,

                            (C)  is in the person's care or custody, or

                            (D)  is at the person's residence;

             (k)  "residence" means a place where the applicant normally resides and includes a residence that the applicant has vacated due to family violence;

              (l)  "respondent" means a person against whom an emergency protection order is sought or granted under this Act;

           (m)  "rules of court" means the rules made under section 29.1 of the Provincial Court Act, 1991 ; and

             (n)  "weapon" has the meaning assigned to it under section 2 of the Criminal Code and includes an explosive substance.

2005 cF-3.1 s2; 2012 c9 s1; 2013 cA-3.1 s86

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Authority of judge

      2.1 Notwithstanding sections 43.7 and 43.9 of the Judicature Act , an application under this Act shall be made to and heard and determined by a judge in accordance with this Act and the regulations.

2009 c16 s9

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Family violence defined

        3. (1) For the purpose of this Act, "family violence" means one or more of the following acts or omissions committed against an applicant or a child by a respondent:

             (a)  an assault that consists of the intentional application of force that causes the applicant to fear for his or her safety but does not include an act committed in self-defence;

             (b)  an intentional, reckless or threatened act or omission that causes bodily harm or damage to property;

             (c)  an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;

             (d)  forcible physical confinement without lawful authority;

             (e)  sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation;

             (f)  conduct that causes the applicant to reasonably fear for his or her safety, including following, contacting, communicating with, observing or recording a person; and

             (g)  the deprivation of food, clothing, medical attention, shelter, transportation or other necessaries of life.

             (2)  Family violence may be found to have occurred for the purpose of this Act whether or not, in respect of an act or omission described in subsection (1), a charge has been laid or dismissed or withdrawn or a conviction has been or could be obtained.

             (3)  For the purpose of this Act, a respondent who encourages or solicits another person to do an act which, if done by the respondent, would constitute family violence against the applicant, is considered to have done that act personally.

2005 cF-3.1 s3

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Application process

        4. (1) An application for an emergency protection order may be made by

             (a)  a person who resides with or has resided with the respondent in a conjugal relationship, whether within or outside marriage; or

             (b)  a person who is, together with the respondent, a parent of one or more children, regardless of their marital status or whether they have lived together.

             (2)  The following persons may apply on behalf of an applicant referred to in subsection (1) for an emergency protection order:

             (a)  a police officer or lawyer, on behalf of a person referred to in subsection (1) and with that person's consent; or

             (b)  a member of a class of persons designated in the regulations under paragraph 20(b).

             (3)  An application for an emergency protection order shall be in the form and made in the manner prescribed by the rules of court.

             (4)  Evidence adduced in support of an application for an emergency protection order shall be given under oath.

             (5)  An application for an emergency protection order shall contain a summary of all previous and current proceedings and orders affecting the applicant and the respondent, including all previous applications and orders made under this Act.

2005 cF-3.1 s4

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Granting of emergency protection order without notice to another person

        5. (1) A judge, on the application of a person referred to in subsection 4(1) made in the prescribed form and manner, may make an emergency protection order without notice to another person where the judge determines on a balance of probabilities that

             (a)  family violence has occurred; and

             (b)  by reason of seriousness or urgency the emergency protection order should be made without delay to ensure the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage.

             (2)  In determining whether an emergency protection order should be made, the judge 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 applicant and whether it is more likely than not that the respondent will continue the family violence;

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

             (d)  the best interests of the applicant and an affected child.

             (3)  For the purpose of paragraph (2)(c), immediate danger to persons or property may be found to exist notwithstanding that the applicant has been forced to vacate his or her residence as a result of the family violence of the respondent and has found temporary shelter elsewhere.

2005 cF-3.1 s5

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Contents of emergency protection order

        6. An emergency protection order may contain one or more of the following provisions that the judge considers necessary and advisable in the circumstances for the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage:

             (a)  a provision granting the applicant exclusive occupation of the residence for a defined period, regardless of ownership;

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

             (c)  a provision directing a police officer to accompany a specified person, within a specified time, to the residence to supervise the removal of personal belongings in order to ensure the protection of the applicant;

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

             (e)  a provision restraining the respondent from attending at or near, or entering, a place that is attended regularly by the applicant, a relative of the applicant, a child or other specified person, including a residence, property, business, school or place of employment;

             (f)  a provision granting the applicant temporary possession of or control over specified personal property, including a motor vehicle, cheque book, bank card, health services card or supplementary medical insurance card, identification documents, keys, utility or household accounts or other personal effects;

             (g)  a provision restraining the respondent from taking, converting, damaging or otherwise dealing with property in which the applicant has an interest;

             (h)  a provision restraining the respondent from committing further acts of family violence;

              (i)  a provision prohibiting the publication of the name and address of the applicant or a child or other information that may identify the applicant or a child;

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

                      (i)  a weapon that the respondent owns, possesses or controls, and

                     (ii)  a document that authorizes the respondent to own, possess or control a weapon referred to in subparagraph (i);

             (k)  where an order includes a provision under paragraph (j), a provision that if the respondent does not deliver up the items referred to in the order, a police officer may, for the purpose of seizing the items, enter and search a place where the police officer has reason to believe the items are located with the assistance and force that are reasonable in the circumstances;

              (l)  a provision requiring the respondent to make the rent or mortgage payments arising in respect of the residence;

           (m)  a provision restraining the respondent from terminating the basic services of utilities servicing the residence;

             (n)  a provision awarding temporary care and custody of a child to the applicant or some other person; and

             (o)  another provision that the court considers necessary to ensure the immediate protection of the applicant or another person or property that is at risk of harm or damage.

2005 cF-3.1 s6

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Duration of emergency protection order

        7. (1) A provision of an emergency protection order referred to in section 6 may be subject to the terms and conditions that the judge considers necessary and appropriate to ensure the protection from family violence of the applicant or a child, including a term that specifies the period of time for which the emergency protection order or a provision of the emergency protection order shall be in effect.

             (2)  Notwithstanding subsection (1) or another provision of this Act, the duration of an emergency protection order shall not exceed 90 days.

             (3)  Notwithstanding subsection (1), a provision of an emergency protection order made under paragraph 6(j) shall cease to be in force in respect of a firearm or other weapon that is the subject of the provision, if an order or final determination with respect to the respondent’s ownership, possession or control of the firearm or other weapon is made under the Criminal Code or the Firearms Act (Canada) in respect of the events on which the emergency protection order is based.

             (4)  An emergency protection order may not be renewed or extended.

2005 cF-3.1 s7

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Respondent to have notice

        8. (1) An emergency protection order is effective upon its being made, but the respondent is not bound by the emergency protection order or by a provision of the emergency protection order until he or she has notice of the emergency protection order.

             (2)  Notice of an emergency protection order shall be served on the respondent in the form and in the manner prescribed by the rules of court.

             (3)  Where, on application to a judge, it appears that

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

             (b)  the respondent is evading service,

the judge may by order dispense with service of the notice and the respondent is considered to have notice of the emergency protection order.

2005 cF-3.1 s8

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Right to review

        9. (1) Every emergency protection order shall contain provisions that

             (a)  advise the respondent of his or her right under subsection 10(1) to apply to a judge to have the emergency protection order set aside;

             (b)  advise the applicant and the respondent that each has the right to apply to a judge after the emergency protection order is made for a variation or termination of the emergency protection order or a part of it; and

             (c)  set out the procedures to be followed in making an application under paragraph (a) or (b).

             (2)  Every emergency protection order shall contain a provision that advises the applicant and the respondent that each has the right to make an application under section 12.1.

2005 cF-3.1 s9; 2012 c9 s2

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Application to set aside

      10. (1) A respondent against whom an emergency protection order is made under subsection 5(1) may apply to a judge within 10 days after being served with, or receiving notice of, the emergency protection order, or a further time that the judge may allow, to have the emergency protection order set aside.

             (2)  An emergency protection order made under subsection 5(1) is not stayed by an application under subsection (1).

             (3)  An application under subsection (1) shall be in the form and in the manner prescribed by the rules of court.

             (4)  On an application under subsection (1)

             (a)  the hearing shall be considered to be a new hearing and, in addition to new evidence brought before the judge, evidence adduced in support of the application for an emergency protection order shall be considered as evidence; and

             (b)  the respondent has the right to be heard and the right to examine and cross-examine witnesses.

2005 cF-3.1 s10

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Powers of judge on hearing to set aside

      11. (1) The judge hearing an application under subsection 10(1) may

             (a)  set aside the emergency protection order if the respondent demonstrates on the balance of probabilities that the order should be set aside;

             (b)  set aside the emergency protection order if both the applicant and the respondent agree that the order should be set aside;

             (c)  dismiss the application to set aside the emergency protection order; or

             (d)  vary the emergency protection order if satisfied that a material change in circumstances has occurred.

             (2)  Notwithstanding paragraph (1)(b), where the judge hearing the application to set aside the emergency protection order is not satisfied that both the applicant and the respondent have freely and voluntarily agreed to set aside the order, the judge may adjourn the proceeding to allow legal advice to be obtained.

2005 cF-3.1 s11

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Application to vary or terminate

      12. (1) Notwithstanding section 10 and at any time after the respondent has been served with notice of an emergency protection order, a judge, on application by either the applicant or the respondent named in the emergency protection order, may, if satisfied on the balance of probabilities that there has been a material change in circumstances since the emergency protection order was made,

             (a)  vary the emergency protection order, or a provision of the emergency protection order, including the duration of the emergency protection order or provision of the emergency protection order;

             (b)  add provisions from section 6 to the emergency protection order;

             (c)  terminate a provision of the emergency protection order; or

             (d)  terminate the emergency protection order in its entirety.

             (2)  An application under subsection (1) shall be in the form and in the manner prescribed by the rules of court.

             (3)  On an application under subsection (1),

             (a)  the hearing shall be considered to be a new hearing and, in addition to other evidence that may be adduced, the court may consider the evidence that was before the court on previous applications in respect of the emergency protection order; and

             (b)  the respondent has the right to be heard and the right to examine and cross-examine witnesses.

             (4)  The termination or variation of one or more provisions of an emergency protection order does not affect the other provisions of the emergency protection order.

             (5)  Unless otherwise ordered by the court, an emergency protection order continues in effect and is not stayed by an application under subsection (1).

             (6)  On an application under subsection (1), the judge shall consider an outstanding order made under the Children's Law Act or the Family Law Act against or affecting the applicant or respondent or a child and may, where he or she considers it appropriate and where the judge is authorized under the Act under which the order is made, vary, amend or rescind that order in accordance with the Act under which the order is made to the extent necessary in order to provide protection under the emergency protection order.

             (7)  Notice of the variation or termination of an emergency protection order, in whole or in part, shall be served in the form and manner prescribed by the rules of court.

2005 cF-3.1 s12

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Appeal

   12.1 (1) With leave of a judge of the Court of Appeal, an appeal from an order made under this Act may be made to the Court of Appeal on a question of law or jurisdiction.

             (2)  Unless a judge of the Court of Appeal orders otherwise, an appeal does not operate as a stay of the order.

2012 c9 s3

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Effect of emergency protection order

      13. (1) An emergency protection order prevails over

             (a)  a prior, subsisting order respecting custody of or access to a child, including an order made under the Divorce Act (Canada) or Part III of the Children's Law Act ; and

             (b)  a provision of a subsisting agreement made under Part IV of the Family Law Act respecting the custody of or access to a child,

but does not prevail over a prior, subsisting order under the Child, Youth and Family Services Act that places a child in the care or custody of a director of child, youth and family services or a person other than the parent from whom the child was removed.

             (2)  A provision in an emergency protection order is subject to and may be varied by a provision in a subsequent order respecting the same matter that is made under another Act or an Act of the Parliament of Canada made on the application of the same party.

             (3)  An application for, or the granting of, an emergency protection order under this Act is in addition to and does not diminish an existing right of action or remedy of the applicant or of another person who is the subject of family violence.

2005 cF-3.1 s13

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Effect on property and leasehold interest

      14. (1) Except as provided by paragraph 6(g) or (j), an emergency protection order does not affect the title to or an ownership interest in real property or personal property jointly held by the applicant and respondent or solely held by one of them.

             (2)  Where a residence is leased by a respondent under an oral, written or implied agreement and an applicant who is not a party to the lease is granted exclusive occupation of that residence, a landlord may not evict the applicant solely on the basis that the applicant is not a party to the lease.

             (3)  At the request of the applicant, the landlord shall advise the applicant of the status of the lease and serve the applicant with notice of a claim against the respondent arising from the lease and the applicant at his or her option may assume the responsibilities of the respondent under the lease for the duration of the emergency protection order.

2005 cF-3.1 s14

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Order directs police officer

      15. An emergency protection order made under this Act is a direction binding on a police officer to

             (a)  give notice of the order to the respondent in accordance with this Act and the rules of court; and

             (b)  take necessary steps, which may include the arrest of the respondent and the seizure of property, to enforce compliance with the emergency protection order.

2005 cF-3.1 s15

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Confidentiality

      16. (1) A person shall not disclose to another person 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 the applicant or a child of the applicant unless the applicant or a person applying on behalf of the applicant consents to the disclosure of the information or if the disclosure is necessary to enforce the emergency protection order.

             (2)  The court may exclude the public from a hearing, or a part of a hearing under this Act, where, in the opinion of the judge, the possibility of an injustice, harm, hardship or adverse effect to or upon a person outweighs the interest in a public proceeding.

             (3)  The court, by order,

             (a)  shall prohibit the public disclosure of a matter connected with an emergency protection order where the disclosure or publication of the matter is prohibited by another Act or an Act of the Parliament of Canada or by a common law rule of confidentiality; and

             (b)  may, at the request of the applicant or the respondent, prohibit the public disclosure of a report of a hearing or a part of a hearing or prohibit publication of a matter connected with an emergency protection order where, in the opinion of the court, that disclosure or publication would

                      (i)  not be in the best interests of the child, or

                     (ii)  be likely to identify, have an adverse effect on or cause hardship to, a person or child.

             (4)  An order under subsection (3) does not prohibit access to court files with the consent of the court for research or statistical purposes where there is no public disclosure of the name or other information that could identify a person named in a report or hearing, or other matter prohibited from being disclosed by an order made under this section.

             (5)  A person who contravenes an order under subsection (3) is guilty of an offence and is liable on summary conviction to the penalties set out in section 18.

2005 cF-3.1 s16

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Protection from personal liability

      17. An action does not lie against a police officer, clerk or another person for loss or damage suffered by a person because of anything, in good faith, done, authorized to be done or authorized to be omitted by either of them

             (a)  under or in the exercise of a power conferred by this Act, the regulations or the rules of court; or

             (b)  in the carrying out of a decision or order made under this Act, the regulations or the rules of court, or a duty imposed by this Act, the regulations or the rules of court.

2005 cF-3.1 s17

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Penalties

      18. (1) A person who

             (a)  fails to comply with the provisions of an order made under this Act;

             (b)  knowingly makes a false statement in an application or a hearing under this Act; or

             (c)  obstructs a person performing a function authorized by this Act or by an order under this Act

is guilty of an offence and upon summary conviction is liable, in the case of a first offence, to a fine of not more than $2,000 or to imprisonment for a term of not more than 6 months, or to both, and in the case of a second or subsequent offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than 12 months or to both.

             (2)  A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened a term of an emergency protection order.

2005 cF-3.1 s18

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Duty to report continued

      19. Nothing in this Act affects a duty set out in section 15 of the Child, Youth and Family Services Act .

2005 cF-3.1 s19

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Regulations

      20. The minister may make regulations

             (a)  defining, enlarging or restricting the meaning of a word or phrase used in this Act but not defined in this Act;

             (b)  designating persons or classes of persons who may make an application for an emergency protection order;

             (c)  respecting the seizure, retention, return or disposal of items required to be seized under a provision in an emergency protection order;

             (d)  respecting the collection of statistical data; and

             (e)  generally to give effect to the purpose of this Act.

2005 cF-3.1 s20

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Commencement

      21. This Act shall come into force on July 1, 2006 .

2005 cF-3.1 s21