Protection Against Family Violence Act – The Basics

The law is the Protection Against Family Violence Act. The Act aims to protect all family members from family violence including children and seniors. The Act provides for some more options to a person who has experienced violence in a family situation. As well as the existing options of a restraining order or a peace bond, the Protection Against Family Violence Act provides for three new types of court order: an emergency protection order, a King’s Bench protection order, and a warrant permitting entry.

Last Reviewed: August 2012

The definition of family members for the purposes of the Act includes people who:

• are or have been married to each other;
• are or have been adult interdependent partners of each another;
• live together or once lived together in an intimate relationship;
• have had children together regardless of whether they have ever lived together or been married; or
• are the children in the care and custody of anyone in the categories above.

The definition of family member also includes people who are related to each other by blood, marriage or adoption, or by an adult interdependent relationship. This would include adult children and seniors. For example, it would include a mother or father-in-law and adult children. A further group included are those who live together where one person has care and custody over the other pursuant to a court order. This would include, for example, those subject to an order of legal guardianship.

Same-sex couples are not specifically referred to as being within the definition of “family member”. However, individuals who are homosexual are protected in the same way as any other individual. That is, the Act will apply if they are related by blood, marriage or adoption.

Last Reviewed: August 2012

The Protection Against Family Violence Act covers cases where an action is:

• carried out intentionally or recklessly in a way that causes injury or property damage and harms or intimidates a family member. This would include acts such as hitting or punching that cause injury, and breaking furniture or other items for the purpose of scaring someone. Family violence can also include not taking action in cases where it will harm or intimidate someone, such as not providing food.
• sufficient to intimidate a family member by creating a reasonable fear of injury or property damage. This would include threats.
• the forced confinement of a family member. For example, where someone is prevented from leaving the house or a room in the house.
• considered to be stalking, which is defined as repeated conduct which a person knows or ought to know is harassment of a family member and which causes a family member to fear for another family member’s safety. Stalking includes conduct such as:
  • following a family member from place to place;
  • communicating directly or indirectly with the family member or anyone the family member knows;
  • watching a place where the family member or someone they know is present, or they work or live;
  • making threats to the family member or anyone they know; or
  • any other kind of conduct that a judge may determine is stalking.
• unwanted sexual contact.

Last Reviewed: August 2012

Yes. If the threat or mental abuse caused physical injury, property damage or the reasonable fear of either, then it could fall within the definition of family violence.

What is a reasonable fear will depend upon the circumstances of each case. For example, if the threat had been made before and acted upon, it would likely be reasonable to be afraid the next time the threat is made. Similarly, if the threat is made whilst holding a weapon of some kind, it would likely be reasonable to be afraid.

Property damage will include damage to the home such as smashing furniture or doors, and breaking personal items.

The mental abuse or threats might also take the form of stalking, which is defined as repeated conduct which a person knows or ought to know is harassment of a family member and which causes a family member to fear for another family member’s safety. Stalking includes conduct such as:

• following a family member from place to place;
• communicating directly or indirectly with the family member or anyone the family member knows;
• watching a place where the family member or someone they know is present, or they work or live;
• making threats to the family member or anyone they know; or
• any other kind of conduct that a judge may determine is stalking.

Last Reviewed: August 2012

Yes, the Protection Against Family Violence Act provides for a type of order called an emergency protection order. An emergency protection order can be requested at any time from a provincial court judge or justice of the peace. The order can be requested during the night, on weekends, as well as during normal daytime hours. In an emergency situation you can call the police at 911. When they arrive you can explain to them that you would like them to apply for an emergency protection order on your behalf. It will be up to the police to decide if they are going to do this or not.

Last Reviewed: August 2012

The police and staff at social service agencies authorized to apply for Emergency Protection Orders and will know how to contact the judges or justices. It is possible for you to make an application yourself but the application must be made in person during normal court hours. The police or a member of an authorized social service agency can apply for an emergency protection order on your behalf by telephone immediately. The order can only be applied for by others if you give your consent.

Last Reviewed: August 2012

No. The family member against whom the order is sought is called the “respondent”. The respondent does not have to be given notice that an application for an emergency protection order is going to be made.

Last Reviewed: August 2012

The judge or justice of the peace has to be satisfied that family violence has taken place, that there is reason for you to believe the violence will continue or be resumed, and that the situation is urgent and serious enough to require an order for your immediate protection and the protection of other family members living with you. The judge will consider:

• any history of violence towards you and other family members;
• whether there has been any controlling behaviour towards you or other family members;
• whether the violence is repetitive or escalating;
• the possibility of immediate danger for people or property;
• if you are elderly — how vulnerable you are;
• the effect of exposure to the violence on any of your children or children in your care and custody;
• what is in the best interests for you and any children involved; and
• your need for a safe environment in order to arrange for longer term protection from the family violence.

It will be important for you to make sure the judge has all the relevant information so that the order can adequately protect you. For example, you want to be sure that all places where you might be (work, school, friends’ homes) are listed as places where the respondent is not allowed to go. You therefore have to give the police all the information when they make the application on your behalf. If the judge speaks to you to hear your evidence about the situation, you will be required to swear an oath that you are telling the truth.

Last Reviewed: August 2012

If you can get access to a phone at any time, you can call the police and ask them to help on an emergency basis. You could also ask anyone else you trust to call for you. If the police are not given entry to the house, the police under the Protection Against Family Violence Act can apply to a judge for a warrant permitting entry to a place where a family member may have been subjected to family violence. Once the police gain entry to the house, you can request that an emergency protection order be applied for. The order can include such things as keeping your son-in-law away from places that you are likely to be.

If the house belongs to you, you can request that the order state that your son-in-law is to leave the house. Even if your son-in-law owns the house, you can still request that he be ordered to leave the house. However, you may wish to consider your safety when he will know exactly where you are and take steps to protect yourself. Some more specific information for seniors on family violence is available at www.oaknet.ca.

Last Reviewed: August 2012

Yes. An emergency protection order can provide for a number of items if they are requested. The order can:

• restrain your son-in-law from being at or near specific places which can include home, work, school;
• restrain your son-in-law from communicating or contacting you and other specified people, for example, your friends or relatives;
• provide that you and other family members have exclusive occupation of a residence for a certain period of time;
• provide for a police officer to remove your son-in-law from the home;
• provide for a police officer to accompany you to the home to collect personal belongings;
• provide for the seizure of weapons if they have been used or threatened to be used to commit family violence; and
• order any other item that a judge feels necessary to ensure your protection.

In addition, it is always a good idea to request that the judge order that if the respondent breaks the order, the police will have the power to arrest him or her.

Last Reviewed: August 2012

An emergency protection order takes effect as soon as it is made by the judge or justice and as soon as the respondent is notified. The order has to include a provision for the order to be reviewed by a King’s Bench judge no later than nine working days from when the emergency protection order was made.

The emergency protection order will therefore include a date, time, and location where the review is to take place. Until the review occurs, the terms of the emergency protection order are of full force and effect once the respondent has notice of the order against him/her.

Last Reviewed: August 2012

It is important to note that orders made under the Protection Against Family Violence Act are of no force unless the person named in the order knows that it exists. He or she must therefore be served with a copy as soon as possible after it is made. Service is the legal term for giving him or her a copy.

When a judge makes an emergency protection order, three copies of the order are made either by the judge or by the person applying for the order (such as a peace officer). The peace officer or anyone else directed by the judge must then serve a copy of the order on your husband as soon as reasonably possible. Make sure that you check that the order has been served. Once the order is served, whoever served it must complete a sworn statement as to how and when they served it. This document is called an Affidavit of Service and is also filed with the court.

If someone else applies for the order on your behalf, but the order is to protect you, then you must also be served with a copy of the order.

Last Reviewed: August 2012

If your husband cannot be found the person applying for the order can also apply to the judge to make an order of “substitutional service” of the emergency protection order. This means that if certain conditions are carried out your husband will be deemed to have notice of the order, even if he has not been found.

The conditions might include:

• serving a member of his family or anyone else who might be able to bring the notice to his attention,
• leaving the order at a place where he has been living,
• posting the order in a public place,
• sending it email,
• publishing it in a newspaper, or
• any other appropriate method of bringing the notice to his attention.

Last Reviewed: August 2012

Your son-in-law can attend before the King’s Bench judge when the emergency protection order is scheduled for review and give evidence to the court as to why the order should be revoked. You can also attend and give evidence as to why an order should continue.

The only other way that the emergency protection order could be discontinued before the review by the King’s Bench would be if both you and your son-in-law agreed to an order to stop the emergency protection order. It might then be possible to apply to have the matter dealt with earlier than the given date.

Last Reviewed: August 2012

The King’s Bench judge will have a copy of the emergency protection order and all relevant notes and documents from the justice of the peace who made the emergency order. The King’s Bench judge will hear evidence from both sides by affidavit (a written statement made under oath)and decide whether to:

• cancel the emergency order;
• order that there be a hearing where the parties will give evidence before a decision can be made;
• confirm the emergency order as a King’s Bench Protection Order; or
• cancel the order and make a different order as a King’s Bench Protection Order.

The review of the emergency protection order will take place whether or not you or the other party (as claimant and respondent) are present.

Last Reviewed: August 2012