FRAMEWORK FOR ACTION AGAINST FAMILY VIOLENCE
2001 REVIEW

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 introduced.

(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 legislation.⁽⁵⁾

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 province.

(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 available.

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 following:

• 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 weapon;
• 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 distance.

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 Criminal Code.

(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 used.

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; and
• 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 cards);
• 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 intended.

(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⁾ Alberta (2000)^,(10) 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 Edward Island.

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.

The training 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.

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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 Directorate, 1999).

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).

12. ¹²Ibid.

13. ¹³Respondents in Manitoba spoken to as part of the interjurisdictional review referred to this case.

14. ¹⁴A.L.G.C. v. Prince Edward Island, [1998] 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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