FRAMEWORK FOR ACTION AGAINST FAMILY VIOLENCE
11. Civil Remedies
(a) Concern Expressed in Focus Groups
Since the Framework for Action Against Family Violence requires police to arrest and
charge accused batterers where there are reasonable and probable grounds for doing so, and the
Framework policy requires the inclusion of a no-contact provision in an undertaking for the
interim release of an accused, one might have expected that a woman and her children would
remain in their home when the alleged batterer is removed. However, the reality is that in the
confusion and upset that surround a violent incident, the woman (in fear for her safety and for
the safety of her children) often seeks refuge in a transition house. Charges are laid, but the
accused is released. Even with the no-contact provision, the perception of victims is that they
are not safe and that she and her children become "prisoners," while "he's free." Thus, we heard
from victims and victim service agencies in the community that "Nova Scotia needs to move
ahead with ensuring that perpetrators are removed from the family's dwelling, allowing the
family to remain and not the opposite, as it exists now."
Victims who pursue criminal prosecution are often in need of civil family law remedies
as well. If the victim is married to the abuser, she may want to file for divorce. Whether she is
married or not, if they have children together she needs a determination of custody, child
support, and sometimes protection for her children from the perpetrator's abuse. However, the
fragmented nature of our traditional court system presents overwhelming obstacles for battered
women seeking justice, and delays in Family Court processes often aggravate the economic
pressure on the victim to resume habitation with the perpetrator.
(b) Why Nova Scotia Opted for the Framework
In some jurisdictions these concerns are addressed in part through provincial domestic
violence legislation which provides civil remedies to supplement the provisions of the Criminal
Code. At the time the Framework was adopted in Nova Scotia, Saskatchewan had already
introduced civil legislation. Under this legislation,(1) emergency intervention orders became
available 24 hours a day from a number of specially recruited and trained Justices of the Peace.
These orders contain provisions granting exclusive occupation of the home to the victim,
restraining abusers from communicating or contacting victims/family members, and authorizing
police to supervise in removal of personal belongings. Although the term of the order is not
stipulated in the Act, in practice it is 30-120 days, depending on how long it takes to access
services and community resources (taking into account delays in accessing lawyers or Legal
Aid). In urban areas, 30 days is usually sufficient.
A longer term Victim's Assistance Order is also available to provide additional remedies
such as compensation for losses (employment, medical or dental expenses), temporary
possession of assets such as the car, and other remedies. Warrants of entry were also thought
necessary to enable police to enter the premises of someone suspected to be experiencing
domestic violence but unable to act on their own, as in some cases of elder abuse or persons with
disabilities. It is noteworthy that Saskatchewan, in selecting their Justices of the Peace, chose
individuals knowledgeable about the dynamics of domestic violence and representative of
various geographic, cultural, and linguistic backgrounds, believing it to be easier to train new
Justices of the Peace in legal matters than in family violence issues.
When Saskatchewan's legislation was first introduced, there was some concern that it
would be ruled unconstitutional on the grounds that it constituted an ultra vires attempt by the
Province to legislate in criminal matters, an area reserved for the federal government. Other
concerns related to whether this legislation would be used as a substitute for criminal charges,
although it was introduced to complement the Criminal Code. Concerns were also expressed
about the timing of the legislation and whether it was needed at all. Critics pointed out that most
of the remedies were already available under existing legislation, such as the Criminal Code
which provided, for example, judicial interim release conditions, peace bonds, probation
conditions, and release conditions for inmates. Many felt the problem was more one of lack of
enforcement than absence of legislation.
In Nova Scotia, domestic violence legislation was drafted(2)
but, during the consultations
that preceded the adoption of the Framework, most stakeholders believed that a better plan of
action was to emphasize enforcement and rigorous prosecution of existing Criminal Code
provisions. There was also fear that the timing of the introduction of such legislation would
undermine a strong criminal approach,(3)
so the Nova Scotia Framework for Action was
(c) 2001 Review
When the Framework was reviewed by the Department of Justice Monitoring Committee
in 1999, the Committee recommended that the Department of Justice coordinate a focused consultation with key community
and justice system stakeholders to review the experience of provincial
jurisdictions which have enacted provincial/family violence legislation and to
determine, in light of the results obtained from the Framework for Action,
whether the adoption of such legislation would benefit victims of spousal/partner
violence and their children.(4)
In the jurisdictional comparison and literature review done as part of this review, we looked at
the legislation that exists in six Canadian jurisdictions and at reviews done of this legislation,
and we questioned stakeholders in those provinces about their views on the value of the
Evaluations and discussions with other jurisdictions demonstrate that victims
appreciate the immediacy of protection and the practical remedies of exclusive occupation of the
home and temporary care and custody of the children. Five years after the adoption of the
Framework, it may be time to reconsider the decision not to enact civil domestic violence
legislation and to look more seriously at the additional range of remedies provided under the
legislation in other provinces.
(i) Overview of Domestic Violence Legislation in Canadian Provinces
Six jurisdictions have now passed domestic violence legislation: Saskatchewan (1995),
Prince Edward Island (1996), Yukon Territory (November 1999), Manitoba (September 1999),
Alberta (June 1999), and Ontario (passed in December 2000 but not yet proclaimed).(6)
(ii) Scope and Definitions
Most acts apply to cohabitants, "family members" or individuals who are living together
in a family, spousal, or intimate relationship and to persons who are parents of children,
regardless of their marital status or whether they have lived together. Prince Edward Island and
Alberta define the spousal relationship as heterosexual only. Alberta adds a clause clarifying
that parents are not limited from using force by way of correction toward a child in their care,
providing the force does not exceed what is reasonable in the circumstances. Manitoba's
legislation applies not only to victims of domestic violence but to all persons subjected to
stalking, regardless of the nature of the relationship between the victim and the stalker. While
Ontario's Act also makes specific references to behaviours typically involved in stalking, its
application is only to those occurring within a defined domestic context.
Domestic violence is usually defined as including physical abuse, threats, and damage to
property (typically worded as an act or threatened act causing bodily harm--or injury--or
damage to property), forcible confinement, or sexual abuse. The Yukon Territory Act adds
"depriving a person of food, clothing, medical attention, shelter, transportation or other
necessaries of life" and both Prince Edward Island and Manitoba include emotional or
psychological abuse. The reader is encouraged to consult the specific pieces of legislation for a
precise wording; this description is intended to provide the reader with a general sense only. See
also Appendix F for a more detailed overview of the provisions of the legislation in each
(iii) Basic Features/Key Provisions
The legislation has similar key provisions but with some differences.(7)
Each enables the
granting of two different types of orders--a short-term Emergency Intervention or Protection
Order and a longer-term Victim Assistance Order, sometimes called a Protection or Prevention
Order. In Saskatchewan, the Yukon Territory, and Alberta, a Warrant of Entry provision is also
The short-term orders are available 24 hours a day, either by telephone from police at the
scene of an abuse incident or by an appearance before a specially-designated Justice of the Peace
trained in family violence issues. Most require the emergency orders to be confirmed within a
specific period of usually 3-7 days by a Superior Court within the jurisdiction, except Manitoba,
where a reverse onus is placed on the respondent to contest it within 20 days of service of the
order. Ontario has a provision enabling either party to request a variance or termination within
30 days but still requires judicial review. In practical terms, the Manitoba reverse onus
provision has the effect of significantly reducing the workload on the court. As well, evaluations
in other jurisdictions suggest that emergency orders are rarely challenged by the respondent, and
are most often confirmed by the court upon review.
Some statutes, such as Saskatchewan's and Manitoba's, do not stipulate the length of
time an emergency protection order can remain in effect, although in practice it is usually
between 30 and 120 days. Others like Prince Edward Island's and Alberta's stipulate a 90 day
time limit on emergency protection orders. All of the statutes have remedies similar to the
- grant exclusive occupation of home to victim;
- remove respondent from home;
- no contact/communication order;
- an order that the respondent cannot attend at a specific place;
- accompaniment by a police officer to remove personal belongings; and
- any other provisions necessary for the protection of the victim (e.g. such as removal of
firearms, leaving the car with the victim).
Some legislation goes on to enumerate "other provisions" more specifically such as:
- order respondent not to take, sell, or damage property;
- order respondent to stop any further violent acts;
- grant possession of certain personal property (such as a motor vehicle, medical or credit
cards, house keys);
- grant the victim temporary care and custody of the children;
- prohibit the publication of the victim's name and address;
- seizure of weapons and documents authorizing ownership, possession, or control of a
- restraining from conduct that is threatening, annoying, or harassing to the applicant; and
- restraining from following applicant from place to place, or being within a specific
The offence and penalty sections differ in that some Acts include penalties within their
own legislation and others use section 127 of the Criminal Code to govern breaches of orders
made under their domestic violence legislation. Prevailing wisdom within other jurisdictions
suggests that the Criminal Code remedy is more effective, is treated more seriously, and garners
more serious sentences/consequences. In addition, police are more familiar with the use of the
(iv) Utilization Rates
Emergency orders are being used but the longer-term orders are not, largely due to the
fact that the process requires legal representation which, in all jurisdictions except Alberta, is
not free and Legal Aid resources are insufficient. Warrant of entry provisions are hardly ever
With respect to short-term emergency orders, Manitoba appears to have among the
highest utilization rates. Manitoba, in its first year, has seen about 1100 orders issued compared
to 400 per year in neighbouring Saskatchewan, which has had legislation for six years.
However, when compared to the number of domestic incidents to which police are called, this
seems low. The number of emergency orders issued on average per year for each jurisdiction
are: Manitoba (1100), Saskatchewan (400), Alberta (122), Prince Edward Island (50), Yukon
Territory (30). This is not to diminish the value of these orders for the victims.
Jurisdictional studies suggest that utilization rates are related to a number of factors
including, but not limited to, the following:(8)
- the philosophy and interpretation attached to the legislation by the various participants
(that is, whether it should be used in conjunction with or instead of criminal charges, the
definition of what constitutes an "emergency," and the conditions under which it is
appropriate to use the legislation); and the degree to which this understanding is shared
among players involved in providing services to victims;
- whether or not training has been provided, to whom, and the quality and content covered;
- the degree of awareness among the public and victims about family violence and the
remedies available under civil legislation.
The factors affecting usage rates require more study to ensure that the legislation is effective in
reaching its intended audience. There may be victims who could potentially benefit from this
legislation but, for whatever reasons, are not able to avail themselves of its provisions.
While utilization rates differ among jurisdictions with legislation in effect, all, with the
exception off the Yukon Territory, have used it frequently and found it to be beneficial.
Jurisdictional reviews, as well as stakeholders, report that the legislation is easy to use and is
meeting its objectives. The Yukon Territory attributes its low utilization rate to factors such as
poor police support, as not enough officers have taken training on the Act; insufficient public
awareness about remedies available under the Act; and to the poor socio-economic conditions,
substance abuse, cultural divisions, and lack of alternatives in the north. It is believed that
women in the north have to leave their community to be safe.
(v) Perceived Benefits
Jurisdictional reviews and the telephone interviews conducted during the current review
revealed that the key benefits of the legislation are that:
- it allows victims and their children to remain in their home, to attend work, and to go to
school in their home communities, causing much less disruption to the family, and more
appropriately places the burden on the perpetrator to find alternate accommodation;
- it includes practical provisions that benefit the victim and children and a broader range of
measures than those currently available on an immediate basis, particularly exclusive
occupation of the home and possession of personal property (e.g. car, VISA or bank
- on a temporary basis, temporary care and custody of the children, and a specific
prohibition against selling or damaging joint property;
- it provides immediate protection for the victim; and
- it sends an immediate message that the perpetrator's behaviour is not acceptable.
(vi) Critical Success Factors
Without exception, jurisdictions with domestic violence legislation identified the most
important critical success factors in its implementation to be intensive training beforehand and
public awareness/education sessions to inform victims and the public of the existence of the
legislation and remedies available. Other critical success factors cited include the use of a
collaborative approach involving multiple departments and stakeholders and adequate
consultation process to solicit the support of the community, the judiciary, and others.
Training of all sectors in family violence and in the specific roles of each component of
the justice system is a critical factor in the successful introduction of any new legislation. It has
been the experience of jurisdictions that training needs to be ongoing, to be updated to address
emerging issues and concerns, and to involve multiple community stakeholders.
An iterative process needs to be devised to deal, on an ongoing basis, with emerging
concerns among players in the justice and the non-justice sectors involved in providing services
to family violence victims. Monitoring and evaluation is also necessary to identify problems
early and intervene quickly and effectively to ensure the legislation is applied in the way it was
(vii) Issues and Concerns
The short-term orders are used much more frequently than the long-term orders, which
usually require legal assistance, and resources in most jurisdictions are insufficient to supply it.
Legal representation for applicants is an issue in most jurisdictions. Although the longer-term
orders were originally envisioned almost as extensions of the short-term orders, this rarely
happens. Instead, the relevant provincial or federal legislation pertaining to custody, access,
maintenance, and property division is being used to resolve these issues in the long term without
recourse to the additional remedies available in the longer-term Victim Assistance Orders.
There remains a philosophical dispute in the field about when it is appropriate to use this
legislation. Some believe its remedies applying to no contact and removal of the abuser are
redundant applications of the Criminal Code arrest and release provisions, and that only where
police have not arrested is it appropriate to use these remedies. Others say they can and should
be used together, that the legislation should not supplant criminal charges and, indeed, should
supplement criminal charges.
The degree to which this legislation is being used in addition to, instead of as a substitute
for criminal charges, is not clear. Evaluation reports from Saskatchewan (1996 and 1998),(9)
and the Yukon Territory (1996)(11)
found police officers using the orders where
victims did not wish to pursue criminal proceedings and in cases where it appeared that evidence
was not sufficient to do so.(12)
However, in a good number of cases, the legislation was being
used as a supplement to charging.
Other issues identified in jurisdictions with legislation include practical implementation
issues such as the time it takes to contact a Justice of the Peace and issue an order, consideration
of the reverse onus provision to eliminate automatic judicial review, and provision of Legal Aid
resources to assist with the longer-term Victim Assistance Orders.
There is currently a case before the courts in Manitoba challenging the ability of the
province to use section 127 of the Criminal Code for enforcement.(13)
The case also charges that
the Province is legislating in the area of criminal law which is outside its sphere of jurisdiction,
making the legislation unconstitutional. Prince Edward Island also faced a legal challenge to its
legislation. In Prince Edward Island, the inclusion of emotional abuse in the definition of family
violence was contested but the court found that it was not too broad. The ability of the province
to legislate and provisions regarding notice to the respondent were challenged. The Court said
the legislation was within the competence of the provincial legislature, but found the notice
provisions to be insufficient(14) and these were amended in 1998 by the government of Prince
Other issues include the ability of the legislation to apply to property on reserves,
specifically the granting of exclusive occupation of the home by the victim. There is
disagreement between the federal and provincial levels of government on this issue. In order for
victims on reserves to be afforded the same degree of protection available to victims off reserve,
one party's view is that Band Councils under the Indian Act(15)
can pass a bylaw adopting the
exclusive possession provision if they choose. The other party considers this to be a land issue,
an area outside the purview of the Band. In practice, all but the exclusive home possession
provisions are being used in Emergency Intervention Orders for victims resident on reserves.
(While this situation applies to the Yukon Territory, only two First Nations have reserve land
and intend to adopt the exclusive home possession provisions once land claims are settled.
Alberta also faces this situation. Prince Edward Island and Manitoba have not had any
difficulties to date with this issue.)
(viii) Domestic Violence Legislation in the United States
Every state in the United States has enacted a civil protection order statute, and the vast
majority of these authorize the essential relief necessary to support a battered woman who wants
to leave an abusive relationship.(16)
Every state provides for emergency ex parte relief. A civil
protection order may direct the abuser to stay away from the victim, to stop threatening her and
to vacate the parties' residence. This ex parte order will protect the victim until trial. Civil
Protection order statutes also provide for comprehensive post-trial relief. They may award the
victim temporary use and possession of jointly owned property, temporary child custody, safe
visitation arrangements for the non-custodial parent, and child support.(17) As in Canadian
jurisdictions with domestic violence legislation, in the United States, the breadth of the civil
protection order remedy is seen as an important supplement and valuable alternative to criminal
prosecution. Although a civil protection order resolves a victim's family law problems quickly,
the order expires in six to twelve months.
(d) Conclusions and Recommendations Regarding Civil Remedies
In light of the concerns expressed by victims about having to leave their homes and
about the stresses created by delays in Family Court processes, and based on the perceived
benefits of the immediacy and breadth of additional remedies available to protect the victim
and his/her children, it is recommended that Nova Scotia consider adopting domestic
violence legislation as a supplement to the Framework for Action. Given the studies done
and information available from other jurisdictions concerning usage rates for emergency orders
and longer term orders, it appears that emergency protection orders are of particular value and
that the provisions of greatest benefit to victims are those granting exclusive occupation of the
home, temporary care and custody of the children, and a specific prohibition against selling,
converting, or damaging property. Provisions directing removal of the abuser and seizure of
weapons are also important. Given the very low usage rates reported for longer-term orders and
warrants of entry, the value of these provisions is less clear. The experience of other
jurisdictions makes it clear that unless legal aid resources are adequate, these provisions will
rarely be used, and that, in any case, lawyers often do not use the legislation, either because they
are unfamiliar with it or because they prefer to use family law legislation to settle longer term
custody, access, support and property issues.
In the event that such legislation is adopted in Nova Scotia, it is recommended that
training be conducted well in advance of the introduction of the legislation and it include:
(1) the dynamics of family violence; (2) the Framework policies and procedures and
application of the Criminal Code; and (3) the elements of the civil legislation.
modules developed for the initial round of training under the Framework, as well as materials
from other jurisdictions with legislation, could be used as a basis for designing the training.
Training should address the specific roles of those involved in responding to domestic violence.
Community agencies should be involved early on in the development of training materials and in
the delivery of training modules. Members of the practicing Bar will also require training
through continuing legal education programming to familiarize themselves with the remedies
available under the legislation.
Interagency coordination and monitoring are necessary to ensure the successful
implementation of such legislation.
It is recommended that coordination and monitoring
occur at both the local and provincial levels through interagency committees, and that, if
implemented, the legislation be monitored through ongoing data collection and that it be
evaluated within five years of its introduction.
Public education should also accompany the legislation to ensure the victims and the
community are aware of it. Issues pertaining to the application of the legislation on reserves
should be addressed in consultation with Aboriginal communities.
1. 1Infra note 224.
2. 2Draft legislation was prepared by Brian Norton, Senior Solicitor, Department of Justice.
3. 3For more detailed discussion of these concerns see C. Marshall, "The Response of the Criminal
Code Justice System to Family Violence in Nova Scotia," supra note 11 and "From Rhetoric to
Reality," the report of the Nova Scotia Law Reform Commission, supra note 12.
4. 4Supra note 14 at 45.
5. 5For detailed descriptions of the provisions of the legislation in Saskatchewan, Prince Edward
Island, the Yukon Territory, Manitoba, Alberta, and Ontario see Appendix F which also contains
comments received from stakeholders in these jurisdictions working with the legislation and
highlights of jurisdictional reviews. See also Canada, Minister of Justice, Review of Provincial
and Territorial Domestic Violence Legislation and Implementation Strategies by T. Roberts
(Ottawa: Research and Statistics Division, Department of Justice, 2001). See also R.
McKendrick, Saskatchewan Department of Justice, "Civil Legislation to Combat Domestic
Violence in Canada: Options for Victims" (Montreal, Quebec, 6-11 August 2000), presented to
the Tenth International Conference on Victimology. This paper also discusses, in more detail,
the training provided prior to the introduction of the various pieces of civil legislation.
6. 6Victims of Domestic Violence Act, S.S. 1994, c.V-6.02 (proclaimed February 1995); Victims of
Family Violence Act, S.P.E.I. 1996, c.V-3.2; Family Violence Prevention Act, S.Y. 1997,
Protection Against Family Violence Act, S.A. 1999, c.P-19.2; Domestic Violence and Stalking
Prevention, Protection and Compensation Act, S.M. 1998, c.D93; Domestic Violence Protection
Act, S.O. 2000, c.33.
7. 7For more detailed descriptions, see the articles cited supra note 223.
8. 8Infra notes 228, 229 and B. Bradford, Final Report: Victims of Family Violence Act Monitoring
(Charlottetown, Prince Edward Island: 1998).
9. 9Canada, Minister of Justice, Review of the Saskatchewan Victims of Domestic Violence Act by
Prairie Research Associates (Ottawa: Department of Justice Canada, Research and Statistics
Directorate, 1996) and A Further Review of the Saskatchewan Victims of Domestic Violence Act
by Prairie Research Associates (Ottawa: Department of Justice Canada, Research and Statistics
10. 10Howard Research, Implementation and Impact of the Protection Against Family Violence Act:
Final Report (Edmonton, Alberta, 2000).
11. 11Canada, Minister of Justice, Spousal Assault and Mandatory charges in the Yukon:
Experiences, Perspectives, and Alternatives by T. Roberts (Ottawa: Department of Justice
Canada, Research and Statistics Division, 1996).
13. 13Respondents in Manitoba spoken to as part of the interjurisdictional review referred to this
14. 14A.L.G.C. v. Prince Edward Island,  P.E.I. J. No.15 (S.C. T.D.), online: QL (PEIJ).
15. R.S.C. 1985, c.I-5, ss.81(1)(p.1), 81(1)(p.2).
16. 16For an in-depth analysis of state civil protection order statutes, see C. F. Klein & L. I. Orloff,
"Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law"
(1993) 21 Hofstra L. Rev. 801 at 1031-43.
17. 17Ibid. at 954, 982 and 998.
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