The Domestic Violence and Stalking Prevention, Protection and Compensation Act

Protection Orders
Prevention Orders
Tort of Stalking
Courts
Coming into force and existing orders
Conclusion

A person who has been subjected to domestic violence by a "cohabitant" can apply for a protective order under the new Act. Section 1 of the Act defines "cohabitants" as:

• persons who reside together or have resided together in a family, spousal or intimate relationship, or
• persons who are the biological or adoptive parents of a child, regardless of their marital status or whether they have lived together at any time.

In addition, a person who has been subjected to stalking can apply for relief, regardless of the nature of his or her relationship to or with the stalker (if any).

Persons will also be able to apply for orders of protection on behalf a minor or mentally incompetent individual who is being stalked or subjected to domestic violence.

Protection Order

Persons subjected to domestic violence or stalking can seek Protection Orders from designated Justices of the Peace quickly, simply and inexpensively, without notice to the respondent. Applicants have to provide evidence under oath about the stalking or domestic violence.

A Justice of the Peace who finds that stalking or domestic violence has occurred, and that the person seeking relief reasonably believes it will continue, may grant a Protection Order. These orders may contain as many of the following provisions as are necessary for the immediate protection of an applicant:

• prohibiting the respondent from attending at the applicant’s residence or place of employment, or that of other specified persons;
• prohibiting the respondent from following the applicant or others;
• prohibiting the respondent from contacting or communicating with the applicant or others, directly or indirectly;
• giving the applicant or respondent possession of necessary personal effects;
• peace officer assistance to remove the respondent from premises and/or to ensure the orderly removal of personal effects;
• requiring the respondent to turn over weapons and authorizing the police to search for weapons.

While applications for Protection Orders may be made in person, procedures are also be in place to enable applications by telephone with the assistance of a peace officer or a lawyer. In this way, persons needing immediate relief are able to request an order 24 hours a day.

Although Protection Orders will be made without notice, respondents can apply within 20 days of service of the order to have the order set aside by the Court of Queen’s Bench and will be given the opportunity to present evidence.

Prevention Orders

The second type of order created under the Act is a Court of Queen’s Bench Prevention Order. When making Prevention Orders, Judges are able to grant any of the types of protective relief available from designated Justices of the Peace. In addition, the court may order other relief necessary to protect the applicant or remedy the domestic violence or stalking. These additional remedies include:

• sole occupation of the family residence;
• temporary possession of specified personal property, such as household goods, furniture or vehicles;
• seizure of items used by the respondent to further the domestic violence or stalking;
• recommending the respondent receive counselling; and
• prohibiting the respondent from damaging, or dealing with property in which the victim has an interest;

to name only a few.

As well, Judges of the Court of Queen’s Bench may order the respondent to pay compensation for any monetary losses the applicant has incurred due to the domestic violence or stalking (such as expenses for counselling, security measures or moving, or lost income).

Where the court is satisfied that a respondent has operated a motor vehicle to further the stalking or domestic violence, the court can order the respondent’s driver’s licence be suspended and prohibit the respondent from operating a motor vehicle.

The Act allows applications to be made for interim or temporary Prevention Orders, including interim Prevention Orders without notice to the respondent if the court feels an order is required on that basis to ensure the applicant’s safety.

Tort of Stalking

The legislation also creates a tort of stalking, enabling persons subjected to stalking who wish to do so to sue stalkers for damages they suffer. Prior to September 30, 1999, this could be done only if the stalking behaviour fit within an existing tort, such as assault or battery.

Courts

As indicated earlier, all applications for Protection Orders are made to designated Justices of the Peace and heard in the Provincial Court. All staff Magistrates and Judges of the Provincial Court are "designated Justices of the Peace".

Court of Queen’s Bench proceedings (e.g. applications to set aside or vary a Protection Order, applications for a Prevention Order or to vary a Prevention Order) involving "cohabitants", are heard in the Family Division of the Court of Queen’s Bench. This is the case whether the allegations involve domestic violence or stalking.

Court of Queen’s Bench proceedings involving non-cohabitants and all actions under section 26 of the Act (tort of stalking) are heard in the Court’s General Division.

Coming into force and existing orders

As indicated earlier, the Domestic Violence and Stalking Prevention, Protection and Compensation Act came into force on Thursday September 30, 1999.

As of September 30, 1999, persons can no longer file applications for Family Maintenance Act non-molestation orders and prohibition orders, including ex parte (without notice) non-molestation orders from Provincial Court Magistrates.

Existing non-molestation orders and prohibition orders under The Family Maintenance Act are not affected by the coming into force of the Act; they continue in force and effect. The Act does provide, however, that when an order is made under its provisions, any prior non-molestation order made by a Magistrate or a Provincial Court Judge (not a Queen’s Bench Judge) involving the same parties is revoked.

The coming into force of the Domestic Violence and Stalking Prevention, Protection and Compensation Act will not affect non-Family Maintenance Act protective orders (e.g. peace bonds, recognizances, civil injunctions).

Conclusion

Print copies of The Domestic Violence and Stalking Prevention, Protection and Compensation Act, C.C.S.M. c.D93, and the Domestic Violence and Stalking Regulation (211Kb PDF), Man. Reg. 117/99, can be obtained from:

Statutory Publications
Lower Level - 200 Vaughan Street
Winnipeg MB R3C 1T5
Phone:945-3101
Fax: 945-7172
E-mail: statpub@gov.mb.ca.

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