Family Law in Manitoba - 2005 Edition

Chapter 10

Last revised: Spring 2005

• Spousal or Partner Abuse
  
      Civil Law Protection
      Criminal Law Protection
   

• Child Abuse and Neglect

FAMILY VIOLENCE

Spousal or Partner Abuse

Spousal or partner abuse is usually violence or threats of violence, and includes physical, sexual, emotional or psychological abuse. These wrongful acts are committed against a person by his or her spouse, common-law partner, boyfriend, girlfriend or other intimate partner, past or present. In an abusive relationship, the abused person usually fears the abuser (or at least the abuser’s behaviour) and often changes his or her own behaviour, giving up the right to be a full and equal partner in the relationship, to keep the peace.

Under the law, no one has the right to abuse another. This abuse may be physical, sexual, emotional or psychological. There is help available for victims of abuse. For more information, call the toll free provincial information/crisis line at 1-877-977-0007. Chapter 16 also contains a list of shelters and community resources for victims of domestic violence.  In 2004, the NorWest Community Health Centre in Winnipeg, with assistance from Legal Aid Manitoba,  Manitoba Justice and Manitoba Family Services and Housing, opened A Woman’s Place, to provide support and legal services to women who have experienced domestic violence.  Services are free of charge.  A Woman’s Place is located at

200 – 323 Portage Avenue
Winnipeg MB  R3B 2C1
Phone: 940-6624 
Fax: 940-1971
E-mail: iwcs@mts.net

There is a cycle of violence in most abusive relationships. It has three distinct phases: a tension-building phase, an explosive incident or phase and a honeymoon phase. Unless the cycle is broken, the abuse will happen more and more frequently and will become more and more severe.

Children who witness abuse in their families— even if they themselves are not the targets—can suffer a great deal. They often grow up believing that abuse is part of a normal relationship and many become abusers or abuse victims themselves.

If a spouse, partner or child is being abused, both criminal and civil law offer assistance and protection. Each branch of the law provides different remedies. It may be necessary to use both systems for the best available protection.

Criminal law is intended to stop crimes or offences from being committed and punish offenders. Usually, the police lay charges and a Crown attorney will prosecute the case in court.

Under criminal law, once someone is arrested and charged with abusing his or her spouse or partner, the court can impose conditions on the alleged abuser, until the charge is dealt with in court. The conditions may include no contact or communication with the victim or forbidding the alleged abuser from using alcohol, or drugs, etc.

Civil law is used to settle disputes between individuals and can also provide protection for an individual. Those who want the assistance and protection of civil law must apply to the court and hire their own lawyers if they wish to be represented. 

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Civil Law Protection

Spouses or partners who are being abused, or who fear they may be abused, may apply to court for an order of protection, sometimes called a restraining order. These orders may forbid the abusing spouse from certain behaviour, such as making harassing telephone calls.

Until September 30, 1999, The Family Maintenance Act provided for these orders.  The Domestic Violence and Stalking Prevention, Protection and Compensation Act has replaced the protective relief provisions of The Family Maintenance Act. It provides victims of domestic violence and stalking with greater protections and options under the law.

This law creates two different types of orders: protection orders and prevention orders.  

A protection order can be obtained quickly, simply and inexpensively, without notice to the alleged abuser or stalker (the respondent).   Applications can be made in person.  Applications can also be made by telephone with the help of a police officer or a lawyer. Anyone applying will have to provide evidence under oath about the stalking or domestic violence.  Protection orders may include any of the following provisions necessary for immediate protection:

• prohibit the respondent from coming to the applicant’s home or workplace or that of other specified persons
• prohibit the respondent from following the applicant or others
• prohibit the respondent from contacting or communicating with the applicant or others, directly or indirectly
• give  the applicant  or respondent possession of necessary personal effects
• provide peace officer assistance to remove the respondent from premises and/or to ensure the orderly removal of personal effects
• require the respondent to turn over weapons and authorize the police to search for and seize weapons

After a protection order is made, the respondent will be notified.  The respondent will then have 20 days to ask the Court of Queen’s Bench to set it aside and will have the opportunity to present evidence.

Prevention orders, made by judges of the Court of Queen’s Bench, may include any of the measures outlined above.  The court can order additional measures to protect the applicant and deal with the domestic violence or stalking, including:

• allowing  the applicant  sole occupation of the family residence
• giving temporary possession of specified personal property, such as household goods, furniture or vehicles
• seizing items used by the respondent to further the domestic violence or stalking such as cameras, video cameras, computers and other recording equipment
• recommending the respondent obtain counselling
• prohibiting the respondent from damaging or dealing with property in which the victim has an interest
• ordering the respondent to pay compensation to the applicant for any monetary losses caused by the violence or stalking, such as expenses for counselling, security measures, moving or lost income

If immediate protection is needed, an abused spouse or partner can apply for a temporary (interim) prevention order, sometimes without notice to the abusing spouse.  Such a without-notice order will remain in effect for a limited time, until a judge can hear from both parties.  For further information on family court proceedings, see Chapter 2, The Court System and Procedures and Alternate Dispute Resolution.

The law also creates a new tort of stalking.  This means stalking victims are now able to sue stalkers for damages they suffer.  Previously, this could be done only if the stalking behaviour fit within an existing tort (law) such as assault or battery.

The Domestic Violence and Stalking Prevention, Protection and Compensation Act came into effect on September 30, 1999.

Formerly, under The Family Maintenance Act, a judge or magistrate could make an order forbidding the abuser to molest, annoy or harass the other spouse or partner (a non-molestation order).  A Court of Queen’s Bench judge could make an order forbidding the abuser to enter the home or place of work of the other (a prohibition order). These orders remain unchanged by the new law.  They continue to be in effect until the court cancels the order or, in the case of a non-molestation order that had been granted by a magistrate or a Provincial Court judge, the person protected under that order gets a protection order or prevention order under the new law.  In such a case, the new protection order or prevention order would take the place of the old non-molestation order

A person disobeying a civil order of protection can be brought before a judge and may be fined or imprisoned. 

Civil orders of protection do not lapse after a certain period of time unless they specifically say so.  Such orders are in effect until changed or ended by a court order, even if the parties reconcile. 

Changes to The Domestic Violence and Stalking Prevention, Protection and Compensation Act were passed on June 10, 2004, and will come into effect October 31, 2005. These changes will allow people who have been in dating relationships to seek orders of protection. These also provide that protection orders will usually expire after three years.  Contact Manitoba Justice’s Domestic Violence Unit, Crime Victim Services Branch at 945-6851 in Winnipeg (toll free 1-800-282-8069, Ext. 6851) or Family Law Branch at 945-0268 in Winnipeg (toll free 1-800-282-8060) Ext. 0268 for further information about these changes. 

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Criminal Law Protection

Anyone, including a spouse or partner, who is attacked or threatened with violence should contact the police at once. Call 911 or, if 911 service is not yet available in your community, call your local RCMP detachment or police department or check the front of your community telephone directory for your local emergency phone number(s).

Spousal or partner abuse is a serious crime. Manitoba Justice has directed all police officers to lay criminal charges every time someone assaults his or her spouse or partner. This includes sexual assault. Charges must be laid when there are reasonable and probable grounds to believe the assault has taken place, even if there are no witnesses to the abuse other than the victim. The police, not the victim, are responsible for laying charges after an offence has been reported.

The police can help the victim leave the home and get medical attention, if necessary. If an abuse victim and his or her children need a place to stay, a shelter may be available in their community. See Chapter 16 for a list of shelters and community resources for victims of family violence.

Once an abusing spouse or partner has been charged, the case will proceed in criminal court. If the alleged abuser pleads not guilty, the victim will ordinarily be required to be a witness for the Crown. In criminal prosecutions by the Crown, only the Crown can stop the proceedings once charges have been laid.

In Winnipeg, a special family violence court handles spousal or partner abuse prosecutions, physical and sexual abuse of children and elder abuse. This court is designed to deal sensitively with abuse prosecutions. The judges and Crown attorneys who appear in this court are particularly aware of the community resources available for both victims and offenders.

In many parts of the province, the Crime Victim Services branch of Manitoba Justice can help victims through a case and help them find other services at:

Victims can also call toll free 1-866-4VICTIM (1-866-484-2846) to be connected with the appropriate crime victim service worker in their area.

A new law, The Victims’ Bill of Rights gives crime victims in Manitoba a stronger voice in decisions affecting their case.  Victims of certain types of very serious crimes are able to exercise certain rights at each stage of the legal process.  These include the right to be consulted about bail, release conditions and discussions between a Crown attorney and the accused offender about how a charge is disposed of in court.

To find out more about The Victims’ Bill of Rights, visit the Manitoba Justice website at www.gov.mb.ca/justice or contact your lawyer or Manitoba Justice, Crime Victim Services.

If an abuser is convicted, the judge will determine the sentence, looking at issues such as the seriousness of the crime and the abuser’s previous criminal record. For example, the judge may order the abuser to attend counselling, may require him or her to keep away from the victim or may imprison the abuser.

As well as the protective orders described in the section on civil law, those who fear further contact with their abusive spouses or partners may apply for a peace bond. This order forbids one person to harass others and is similar to a civil order of protection except that it is handled in criminal court. It is also available to people other than spouses and common-law partners.

An application for a peace bond can be made at the nearest Provincial Court office. A peace bond is issued if the other person consents to a bond or a judge orders it after a hearing. The peace bond may include conditions such as no personal or telephone contact. A bond remains in effect for up to one year and a party who does not abide by its terms can face criminal charges. 

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Child Abuse and Neglect

Civil law in Manitoba allows the province to intervene to protect children. The Child and Family Services Act requires child and family services agencies and the police to take action to protect children. A child in need of protection is one whose life, health or emotional well-being is endangered by the actions or omissions of a person.

Anyone with reason to believe a child is in need of protection must report the situation to the child’s parent or guardian or to a child and family services agency. If a child is in need of protection because of the actions of their parent or guardian, or if the parent or guardian is unknown, then the report must be made to an agency. See Chapter 12 for further discussion on protection of children. Child and family services agency offices are listed in Chapter 16.

Children are also protected under criminal law. The Criminal Code of Canada has a number of provisions to protect children and punish offenders. These include criminal negligence, assault and sexual assault and sexual offences against children.

In situations involving suspected physical or sexual abuse, child and family services agencies and the police must share information and work together. In some areas of the province, there is a special Child Victim Unit in the Crime Victim Services Branch, that addresses the special needs of children who must give evidence in court.  See the previous page for telephone numbers of all the Crime Victim Services offices in Manitoba or call toll free 1-866-4VICTIM (1-866-484-2846) to be connected to the crime victim services worker in your area.

In Winnipeg, criminal court cases involving child abuse can be held in a special child-friendly courtroom, designed to make children feel as comfortable as possible.  The witness box accommodates the presence of a support person during testimony.  In addition to brightly coloured walls, the courtroom is equipped with closed-circuit television and other useful aids in helping young, vulnerable witnesses testify.  Adjacent to the courtroom is a child’s waiting room with an attached bathroom, games, toys, a television with closed captioning capacity and a TTY deaf-access telephone line.

If one parent believes his or her spouse or ex-spouse, partner or ex-partner is threatening a child’s safety, the police or an agency should be contacted immediately. The concerned parent should contact a lawyer for help in obtaining a civil order of protection, a peace bond or other protective measures. If the alleged abuser has custody of the child or court ordered visits with the child (access), the court may consider changing custody, or changing or eliminating access if the judge believes it is in the best interests of the child.

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