Bill 117 2000

An Act to better protect
victims of domestic violence

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1.  (1)  In this Act,

"applicant" means an applicant for an intervention order or an emergency intervention order; ("requérant")

"child" means a person under the age of 18; ("enfant")

"cohabit" means to live together in a conjugal relationship, whether within or outside marriage; ("cohabiter")

"court" means the Superior Court of Justice; ("tribunal")

"designated judge or justice" means a judge of the Ontario Court of Justice or justice of the peace designated under section 13; ("juge désigné")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"relative" means any person related to another person by blood, marriage or adoption; ("parent")

"residence" includes a residence that a person has vacated due to domestic violence; ("résidence")

"respondent" means the respondent to an application for an intervention order or an emergency intervention order; ("intimé")

"weapon" means weapon as defined in the Criminal Code (Canada). ("arme")

Domestic violence

(2)  For the purposes of this Act, domestic violence means the following acts or omissions committed against an applicant, an applicantís relative or any child:

1. 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 any act committed in self-defence.

2. An intentional or reckless act or omission that causes bodily harm or damage to property.

3. An act or omission or threatened act or omission that causes the applicant to fear for his or her safety.

4. Forced physical confinement, without lawful authority.

5. Sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation.

6. A series of acts which collectively causes the applicant to fear for his or her safety, including following, contacting, communicating with, observing or recording any person.

Same

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whether or not, in respect of any act or omission described in subsection (2), a charge has been laid or dismissed or withdrawn or a conviction has been or could be obtained.

Applicants

2.  (1)  Subject to subsection (2), the following persons may apply for an intervention order or an emergency intervention order:

1. A spouse or former spouse, within the meaning of Part III of the Family Law Act, of the respondent.

2. A same-sex partner or former same-sex partner, within the meaning of Part III of the Family Law Act, of the respondent.

3. A person who is cohabiting with the respondent, or who has cohabited with the respondent for any period of time, whether or not they are cohabiting at the time of the application.

4. A person who is or was in a dating relationship with the respondent.

5. A relative of the respondent who resides with the respondent.

Age restriction

(2)  A person must be at least 16 years old to apply for, or be the respondent to an application for, an intervention order or an emergency intervention order.

Intervention order

3.  (1)  On application with notice to the respondent, the court may make a temporary or final intervention order if it is satisfied on a balance of probabilities that,

(a) domestic violence has occurred; and

(b) a person or property may be at risk of harm or damage.

Contents of order

(2)  An intervention order may contain any or all of the following provisions that the court considers appropriate in the circumstances for the protection of any person or property that may be at risk of harm or damage or for the assistance of the applicant or any child:

1. Restraining the respondent from attending at or near, or entering, any place that is attended regularly by the applicant, a relative of the applicant, any child or any other specified person, including a residence, property, business, school or place of employment.

2. Restraining the respondent from engaging in any specified conduct that is threatening, annoying or harassing to the applicant, a relative of the applicant, any child or any other specified person.

3. Requiring the respondent to vacate the applicantís residence, either immediately or within a specified period of time.

4. Requiring a peace officer, within a specified period of time, to accompany the applicant, respondent or a specified person to the applicantís residence and supervise the removal of that personís or another named personís belongings.

5. Restraining the respondent from contacting or communicating with the applicant or any other specified person, directly or indirectly.

6. Restraining the respondent from following the applicant or any other specified person from place to place, or from being within a specified distance of the applicant or other specified person.

7. Requiring a peace officer to seize,

i. any weapons where the weapons have been used or have been threatened to be used to commit domestic violence, and

ii. any documents that authorize the respondent to own, possess or control a weapon described in subparagraph i.

8. Granting the applicant exclusive possession of the residence shared by the applicant and the respondent, regardless of ownership.

9. Requiring the respondent to pay the applicant compensation for monetary losses suffered by the applicant or any child as a direct result of the domestic violence, the amount of which may be summarily determined by the court, including loss of earnings or support, medical or dental expenses, out-of-pocket expenses for injuries sustained, moving and accommodation expenses and the costs, including legal fees, of an application under this Act.

10. Granting the applicant or respondent temporary possession and exclusive use of specified personal property.

11. Restraining the respondent from taking, converting, damaging or otherwise dealing with property in which the applicant has an interest.

12. Requiring the respondent to attend specified counselling.

13. Recommending that a child attend specified counselling at the respondentís expense.

Other proceedings

(3)  An application under this section shall contain a summary of all previous and current court proceedings and orders affecting the applicant and respondent, including all applications and orders under this Act.

Terms

(4)  Subject to subsection (5), any provision of an intervention order described in subsection (2) may be subject to such terms as the court considers appropriate, including a term that specifies the period of time for which the provision shall be in force.

Same

(5)  A provision of an intervention order described in paragraph 7 of subsection (2) shall cease to be in force if an order or final determination with respect to the respondentís ownership, possession or control of weapons is made under the Criminal Code (Canada) or the Firearms Act (Canada).

Enforcement

(6)  A provision of an intervention order described in paragraph 1, 2, 3, 4, 5, 6, 7 or 8 of subsection (2) shall be enforced by peace officers under the Criminal Code (Canada).

Same

(7)  A provision of an intervention order described in paragraph 9, 10, 11, 12 or 13 of subsection (2) may be secured by a requirement that the respondent,

(a) post a bond in the form and amount that the court considers appropriate; or

(b) enter into a recognizance in a form acceptable to the court.

Emergency intervention order

4.  (1)  On application, without notice to the respondent, the court or a designated judge or justice may make an emergency intervention order if the court or designated judge or justice is satisfied on a balance of probabilities that,

(a) domestic violence has occurred;

(b) a person or property is at risk of harm or damage; and

(c) the matter must be dealt with on an urgent and temporary basis for the protection of the person or property that is at risk of harm or damage.

Other proceedings

(2)  An application under this section shall contain a summary of all previous and current court proceedings and orders affecting the applicant and respondent, including all applications and orders under this Act.

Contents of emergency intervention order

(3)  An emergency intervention order may only contain a provision that the court could include in an intervention order under paragraph 1, 2, 3, 4, 5, 6 or 7 of subsection 3 (2) which the court or designated judge or justice considers appropriate in the circumstances for the urgent protection of a person or property that is at risk of harm or damage.

Terms

(4)  Subject to subsection (5), any provision of an emergency intervention order may be subject to such terms as the court or designated judge or justice, as the case may be, considers appropriate, including a term that specifies the period of time for which the provision shall be in force.

Same

(5)  A provision of an emergency intervention order described in paragraph 7 of subsection 3 (2) shall cease to be in force if an order or final determination with respect to the respondentís ownership, possession or control of weapons is made under the Criminal Code (Canada) or the Firearms Act (Canada).

Enforcement

(6)  A provision of an emergency intervention order shall be enforced by peace officers under the Criminal Code (Canada).

Emergency intervention order prevails over civil orders

(7)  An emergency intervention order prevails over any order made under the Childrenís Law Reform Act, the Divorce Act (Canada) or the Family Law Act against or affecting the applicant or respondent or any child.

Right to hearing

(8)  Every emergency intervention order shall,

(a) advise the applicant and the respondent that they are entitled to a hearing before the court for the purpose of asking for the variation or termination of the emergency intervention order if either one requests a hearing within 30 days after the respondent is served with the order; and

(b) set out the procedures to be followed in order to make the request.

Designated judge or justiceís order sent to court for review

(9)  Upon making an emergency intervention order, a designated judge or justice shall promptly forward a copy of the order and all supporting documentation, including any reasons for the order, to the court.

Request for hearing

5.  (1)  Upon receiving a request for a hearing in respect of an emergency intervention order from the applicant or respondent within the required 30-day period, the clerk of the court shall set a date for the hearing of the matter, which shall be not later than 14 days after the date the court received the request for the hearing.

Confirmation or order for hearing

(2)  If a request for a hearing in respect of an emergency intervention order made by a designated judge or justice is not made by the applicant or respondent within the required 30-day period, a judge of the court shall review the emergency intervention order and the supporting documentation, without holding a hearing, and,

(a) shall confirm the order if he or she is satisfied that there was evidence before the designated judge or justice to support the granting of the order; or

(b) shall order a hearing of the matter if the judge is not satisfied that there was evidence before the designated judge or justice to support the granting of the order or is not satisfied that the evidence before the designated judge or justice supported one or more of the provisions contained in the order.

Notice of confirmation

(3)  If the judge confirms the emergency intervention order under clause (2) (a), the confirmed emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court and the clerk of the court shall notify the applicant and respondent of the confirmation.

Notice of hearing under subs. (1)

(4)  If a date for a hearing of the matter is set under subsection (1), the clerk of the court shall notify the applicant and respondent of the date of the hearing.

Notice of hearing under subs. (2)

(5)  If a hearing of the matter is ordered under subsection (2), the clerk of the court shall notify the applicant and respondent of the date of the hearing, which shall be not later than 14 days after the date of the
order under subsection (2).

If no request for hearing
re court order

(6)  If no request is made within the required 30-day period in respect of an emergency intervention order made by the court, the emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court on the day after the expiry of the required 30-day period.

Order not stayed by request
for hearing

(7)  An emergency intervention order that is the subject of a request for a hearing by the applicant or respondent remains in force and is not stayed by the making of the request.

Powers of court at hearing

6.  (1)  At a hearing set or ordered under section 5, the court may confirm, vary or terminate the emergency intervention order and section 3, including paragraphs 8 to 13 of subsection 3 (2), applies to the hearing and the order with necessary modifications.

Same

(2)  A hearing under this section shall be a new hearing and, in addition to any new evidence brought before the court, the court shall consider the evidence that was before the designated judge or justice or court that made the emergency intervention order.

Confirmed or varied order deemed
to be court order

(3)  If the court confirms or varies the emergency intervention order, the confirmed or varied emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court.

Service

7.  (1)  An intervention order made by the court under section 3 or 6 shall be served on the respondent,

(a) by a peace officer, if the court so directs;

(b) by the applicantís counsel or agent;

(c) by the court, if the applicant was unrepresented before the court; or

(d) in any other prescribed manner.

Same

(2)  An emergency intervention order shall be served on the respondent in the prescribed manner.

Substituted service

(3)  If the court is satisfied at any time that service cannot be effected by a means described in subsection (1) or (2), it may make an order for substituted service on the respondent, whether or not any attempt has yet been made to serve the respondent.

Orders immediately effective

8.  (1)  An intervention order and an emergency intervention order are effective immediately upon being made.

Not enforceable without service or notice

(2)  Despite subsection (1), an intervention order or an emergency intervention order is not enforceable against the respondent unless the respondent,

(a) has been served with the order; or

(b) has received notice of the order.

Motion to vary or terminate order

9.  (1)  The applicant or respondent to an intervention order may make a motion to the court at any time, upon notice to the other party, to vary or terminate the order.

Order to vary or terminate

(2)  If the court is satisfied, upon a motion under subsection (1), that there has been a material change in circumstances since the intervention order was made, the court may vary or terminate the order.

Order not stayed by motion

(3)  The intervention order that is the subject of a motion under this section remains in force and is not stayed by the bringing of the motion.

Civil orders to be considered

10.  (1)  In a review of an emergency intervention order by a judge under subsection 5 (2), at a hearing under section 6 or on a motion to vary or terminate an intervention order under section 9, the judge shall consider any outstanding orders made under the Childrenís Law Reform Act or the Family Law Act against or affecting the applicant or respondent or any child and may, if he or she considers it appropriate and if it is authorized under the Act under which each such order is made, vary, amend or rescind any of those orders under the Act under which it is made to the extent necessary in order to provide protection under an intervention order.

Same

(2)  In a review of an emergency intervention order by a judge under subsection 5 (2), at a hearing under section 6 or on a motion to vary or terminate an intervention order under section 9, the judge shall consider any outstanding orders made under the Divorce Act (Canada) against or affecting the applicant or respondent or any child and may consider whether it would be appropriate under the Divorce Act (Canada) to vary, amend or rescind any of those orders.

Appeal

11.  An appeal from an intervention order may be made to the Divisional Court.

Property ownership not affected by order

12.  (1)  Except as provided by paragraph 7 or 11 of subsection 3 (2), an intervention order or an emergency intervention order does not in any manner affect the title to or an ownership interest in any real or personal property jointly held by the applicant and respondent or solely held by one of them.

Exclusive possession of leased residence

(2)  Where a residence is leased by a respondent pursuant to an oral, written or implied agreement and an applicant who is not a party to the lease is granted exclusive possession of that residence as permitted by paragraph 8 of subsection 3 (2), no landlord shall evict the applicant solely because the applicant is not a party to the lease.

Same

(3)  On the request of an applicant mentioned in subsection (2), the landlord shall advise the applicant of the status of the lease and serve the applicant with notice of any 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.

Designated judges, justices of the peace

13.  The Chief Justice of the Ontario Court of Justice shall designate those judges of the Ontario Court of Justice and justices of the peace who shall be available on a 24-hour a day basis seven days a week to hear applications under section 4.

Protection from personal liability

14.  No action or other proceeding shall be instituted against a peace officer, clerk of the court or any other person for any act done in good faith or for any alleged neglect or default in good faith, in the execution or intended execution of,

(a) the personís duty under this Act; or

(b) the personís duty to carry out the provisions of an order made under this Act.

No other rights of action affected

15.  An application for an intervention order or an emergency intervention order under this Act is in addition to and does not diminish any existing right of action for the applicant or for any other victim of domestic violence.

Prohibition

16.  (1)  No person shall, in making an application or motion under this Act, commit perjury or public mischief within the meaning of the Criminal Code (Canada).

Enforcement

(2)  Subsection (1) shall be enforced by peace officers under the Criminal Code.

Rules of court

17.  (1)  Subject to the approval of the Lieutenant Governor in Council, the Family Rules Committee may make rules under section 68 of the Courts of Justice Act in relation to the practice and procedure in proceedings under this Act, including rules,

(a) governing applications for intervention orders and emergency intervention orders;

(b) governing the procedures for requesting a hearing in respect of an emergency intervention order;

(c) governing the procedures for conducting a hearing described in clause (b);

(d) governing the service of any order made under this Act and any notice required to be given under this Act, but not prescribing a manner of serving intervention orders and emergency intervention orders for the purpose of section 7;

(e) prescribing the contents of intervention orders and emergency intervention orders;

(f) prescribing forms.

Rules to provide expeditious access to judicial system

(2)  The rules of court applicable to the practice and procedure in proceedings under this Act shall be designed to provide applicants and respondents expeditious access to the judicial system.

No fees for application, etc.

(3)  No fee may be prescribed under the Courts of Justice Act for any application, request or motion under this Act.

Attorney General may require rules

18.  (1)  The Attorney General may require that the Family Rules Committee make, amend or revoke a rule that it has the authority to make, amend or revoke, as described in section 17.

Regulation may be made if rule is not

(2)  If the Family Rules Committee does not make, amend or revoke a rule as required by the Attorney General within 60 days after receiving the Attorney Generalís requirement in writing, the Lieutenant Governor in Council may make a regulation that carries out the intent of the Attorney Generalís requirement.

Regulation prevails over rule

(3)  A regulation made under subsection (2) may amend or revoke a rule of court and, in the event of a conflict between a regulation made under subsection (2) and the rules of court, the regulation prevails.

Regulations

19.  (1)  The Lieutenant Governor in Council may make regulations,

(a) respecting the seizure, retention, return or disposal of items required to be seized pursuant to a provision in an intervention order or an emergency intervention order described in paragraph 7 of subsection 3 (2), including authorizing the court or a designated judge or justice to issue a warrant authorizing the entry and search of a dwelling or other place;

(b) governing methods of applying to a designated judge or justice for an emergency intervention order;

(c) prescribing manners of serving intervention orders and emergency intervention orders for the purpose of section 7;

(d) requiring the court or a designated judge or justice to send a copy of an order made under this Act to any person specified by the regulations;

(e) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out effectively the intent and purpose of this Act.

Different application to different areas of Ontario

(2)  A regulation made under subsection 18 (2) or subsection (1) may contain different rules, requirements and provisions for different areas of Ontario.

Consequential Amendments

Courts of Justice Act

20.  Paragraph 1 of the Schedule to section 21.8 of the Courts of Justice Act, as enacted by the Statutes of Ontario, 1994, chapter 12, section 8 and amended by 1996, chapter 31, section 65, is further amended by adding the following Act:

Domestic Violence Protection Act, 2000

Repeal of s. 35 (2) of
Childrenís Law Reform Act

21.  (1)  Subsection 35 (2) of the Childrenís Law Reform Act is repealed.

Repeal of s. 35 of
Childrenís Law Reform Act

(2)  Section 35 of the Act, as amended by subsection (1), is repealed.

Transition

(3)  Despite the repeal of subsection 35 (2) of the Act, any prosecution begun under that subsection before its repeal shall continue as if it were still in force.

Same

(4)  Despite the repeal of section 35 of the Act,

(a) any proceeding begun under that section before its repeal shall continue as if section 35 were still in force; and

(b) any order made under section 35 before its repeal or pursuant to clause (a), after its repeal, remains in force until it terminates by its own terms or is rescinded or terminated by a court.

Repeal of s. 46 (2) of Family Law Act

22.  (1)  Subsection 46 (2) of the Family Law Act is repealed.

Repeal of s. 46 of Family Law Act

(2)  Section 46 of the Act, as amended by the Statutes of Ontario, 1999, chapter 6, section 25 and by subsection (1) of this Act, is repealed.

Transition

(3)  Despite the repeal of subsection 46 (2) of the Act, any prosecution begun under that subsection before its repeal shall continue as if it were still in force.

Same

(4)  Despite the repeal of section 46 of the Act,

(a) any proceeding begun under that section before its repeal shall continue as if section 46 were still in force; and

(b) any order made under section 46 before its repeal or pursuant to clause (a), after its repeal, remains in force until it terminates by its own terms or is rescinded or terminated by a court.

Commencement and Short Title

Commencement

23.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

24.  The short title of this Act is the Domestic Violence Protection Act, 2000.