Six provinces and one territory have adopted domestic violence legislation to provide civil law remedies in addition to criminal law protections. Alberta,¹⁸⁶ Manitoba,¹⁸⁷ Nova Scotia,¹⁸⁸ Prince Edward Island,¹⁸⁹ Saskatchewan¹⁹⁰ and the Yukon Territory¹⁹¹ have all enacted family violence legislation. Ontario has passed the Domestic Violence Protection Act, 2000 which received Royal Ascent on December 21, 2001 but as of the date of writing, has not yet been proclaimed in force.¹⁹²

These provincial and territorial laws allow people to apply to court through simplified legal procedures (and in some provinces by telephone) for restraining orders against violent spouses or other family members and for orders of temporary exclusive possession of the matrimonial home. Applications typically can be made by the victim or by designated persons on their behalf such as a social worker. These remedies are intended for use in conjunction with the criminal law to protect victims of family violence. This legislation tends to include a broad range of family relationships from common-law relationships to married couples to members of the same family. While such laws cannot get to the roots of the causes of family violence, they can provide some basic protection for victims of violence in terms of personal security and address the need of victims to stay in their own homes.

In Ontario for example, when there is a significant risk of post-separation harassment or violence, a civil restraining order can be sought. This permits a court order to be made restraining a person from molesting, annoying or harassing the applicant or a child in a person's care. Such orders can require the abuser to stay a certain distance from the residence or place of work of the applicant, or to refrain from direct or indirect communication. However some evidence of recent violence or harassment is usually required to obtain such an order. Where such remedies are legally applicable on reserve, enforcement may be a problem. The Ontario legislation also provides for orders of exclusive possession of the matrimonial home and its contents. In considering an application for such an order the court is required to take into account a number of factors including any violence committed against the applicant or any children by the other spouse.¹⁹³

The Prince Edward Island Victims of Family Violence Act¹⁹⁴ provides for emergency protection orders and victim assistance orders. An emergency protection order can be made only if a justice of the peace is satisfied that family violence (as defined by the Act) has happened and that the situation is serious and urgent. An emergency protection order can be used for a number of purposes including directing a police officer to remove the abuser from the home, awarding temporary custody of children, giving the victim temporary possession of personal property (such as a car) or giving the victim exclusive occupation of the home. A victim assistance order is intended to provide longer term protection and would be sought when an emergency protection order expires or when the situation is no longer an emergency. A victim assistance order can provide a range of remedies including:

• exclusive occupation of the home for a defined period of time;
• removal of the abuser from the home immediately or within a specified time;
• police supervision of the removal of personal belongings from the home
• direction to the abuser to stay away from identified places;
• temporary custody or day-to-day care of the children;
• temporary possession of personal property.
• additional orders can be made prohibiting the abuser from various acts.

There is a little information available concerning the applicability or enforcement of law dealing with restraining orders or of emergency protection orders under provincial domestic violence legislation to address family violence on reserves.

Difficulties in enforcing restraining orders against partners on reserve was identified by the focus group participants as a major concern. The Report of the Special Representative on Protection of First Nation Women's Rights also identified enforcement as a major problem that women on reserve face.

Women at the focus group reported that women who are victims of family violence sometimes turn to the courts to seek temporary restraining orders, which would allow them to remain in the matrimonial home with their children. However, after obtaining restraining orders, women are sometimes reportedly told by the RCMP that the band doesn't have the power to enforce the restraining order."¹⁹⁵

The provincial schemes often provide for orders of exclusive possession of the matrimonial home as part of a package of remedies that can be applied for, and granted simultaneously. The non-applicability of orders for possession and difficulties in enforcing restraining orders means that First Nation women cannot enjoy the full range of remedies available under such legislation, thus undermining its goals and its effectiveness in a reserve context.

Child custody actions are another means by which women seek protection for their children in situations of family violence and marriage breakdown. The effects of a child witnessing spousal abuse are understood to a greater extent in recent years. It is given greater consideration in child custody and access determinations in court. Nicholas Bala concludes that the Canadian courts are recognizing the need for a different response when abuse is involved and that courts are factoring in the nature of the abuse, the effects of that abuse on the children, what the future impact of that abuse will be as well as the risk of immediate harm on the child.¹⁹⁶ In an on reserve scenario, even where a woman may be granted custody of the children, the courts still cannot order exclusive possession of the matrimonial home. Again, First Nation women on reserve are at a disadvantage in accessing a comprehensive package of remedies in situations of domestic violence. As a result, women in these situations are forced to seek shelter elsewhere while the abuser who holds the certificate of possession remains in the matrimonial home.

Where the real property is the only or nearly the only asset of the marriage and where a victim of violence does not hold a Certificate of Possession, then she is essentially without a remedy. In such cases, women cannot obtain an order for exclusive possession of a matrimonial home situated on a reserve, and since a restraining order will not allow her to stay in the matrimonial home, the victim is the one who ends up leaving and has to find alternative accommodations for herself and the children.

It is well known, however, that there is a critical shortage of housing on reserves. When additional housing is not available on reserve then First Nation women must live with relatives and friends who will provide them with lodging for a limited period of time. The participants in the Focus Groups raised the critical shortage of housing on reserves as a recurring theme working against women in general and especially those who are involved in an abusive relationship. The norm for women who are fleeing a violent relationship is to leave the reserve in order to find accommodation off-reserve:

Lack of adequate and affordable housing is one of the most serious problems facing aboriginal women who live off reserve. Ironically, many aboriginal women living off reserve were forced to relocate due to chronic housing shortages on their reserves. Women at the focus group expressed the view that the situation has reached crisis proportions.¹⁹⁷

The following is an example of the type of extreme crises First Nation women can find themselves in, due to lack of housing on and off reserve:

An aboriginal woman committed suicide earlier this year after the authorities apprehended her children. The woman, who had five children, was forced to leave her reserve due to a chronic housing shortage. However, she could not find affordable housing off the reserve. Due to her financial situation, she was forced to live at a rundown boarding house with her five children. She sought assistance from the authorities to seek affordable housing for her and her children. The authorities responded by apprehending her five children. At that point the woman sadly lost all hope and took her life.¹⁹⁸

The lack of available resources for women who find themselves in an abusive relationship means that the women find themselves trapped in the relationship they might otherwise flee. One woman reported that her husband beat her up all of her life and she stayed with him because she had nowhere to go. She stated that if there were safe houses either on the reserve or close to the reserve she could have escaped many years earlier. Another woman said that she lived in a remote community and that she had to escape by plane. This woman felt that if she would have had money available to her to pay the plane fare or a safe place to go on reserve, she could have escaped sooner.¹⁹⁹

The need to empower Aboriginal women through the establishment of First Nations agencies is clear. The Report of the Aboriginal Justice Inquiry of Manitoba stated that, "Aboriginal women said they would be more likely to lay charges to testify if someone were available to explain the court procedure to them, and if they were give emotional support throughout the proceedings."²⁰⁰

In addressing the issue of family violence on reserves, the approach must be holistic and community driven. This means looking at the "individual in the context of the family; the family in the context of the community; the community in the context of the larger society."²⁰¹ The participants of the Focus groups expressed the view that the involvement of the whole community in dealing with the issue of family violence is necessary. A model geared to the condition of individual communities is the preferred approach rather than a generic approach. Empowering women by disseminating information and educational resources is at the beginning of the healing process for many women.

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