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Family Law in Manitoba -
2005 Edition
Chapter 10
Last revised: Spring
2005
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 the respondent uses a vehicle
to further the stalking or domestic violence, a Court of Queen’s Bench
judge may suspend the respondent’s driver’s licence and prohibit the
respondent from operating a motor vehicle.
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:
Winnipeg |
945-6851 |
Brandon and Area: |
(204)726-6515 |
Dauphin and Area: |
(204) 622-5080 |
Morris and Area: |
(204) 746-8249 |
Portage and Area: |
(204) 239-3378 |
The Pas and Area: |
(204) 627-8483 |
Thompson and Area: |
(204) 677-6368 |
Selkirk and Area: |
(204) 785-5213 |
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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