Emergency Protection Orders Regulations

Link to law: http://laws-lois.justice.gc.ca/eng/regulations/SOR-2014-266/FullText.html

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Emergency Protection Orders Regulations

SOR/2014-266FAMILY HOMES ON RESERVES AND MATRIMONIAL INTERESTS OR RIGHTS ACT
Registration 2014-11-21
Emergency Protection Orders Regulations
P.C. 2014-1269 2014-11-20Whereas the Governor General in Council considers it necessary that the annexed Regulations be made for carrying out the purposes and provisions of the Family Homes on Reserves and Matrimonial Interests or Rights ActFootnote a;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to subsection 53(1) of the Family Homes on Reserves and Matrimonial Interests or Rights ActFootnote a, makes the annexed Emergency Protection Orders Regulations.
Return to footnote aS.C. 2013, c. 20Interpretation

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act
Loi

Act means the Family Homes on Reserves and Matrimonial Interests or Rights Act. (Loi)

applicant
demandeur

applicant means the person who makes an application, whether or not they are represented by another person who acts on their behalf. (demandeur)

application
demande

application means an application for an emergency protection order under subsection 16(1) of the Act. (demande)

family violence
violence familiale

family violence has the same meaning as in subsection 16(9) of the Act. (violence familiale)

respondent
défendeur

respondent means the spouse or common-law partner of an applicant. (défendeur)

telecommunication
télécommunication

telecommunication includes communication by telephone, email or fax. (télécommunication)

vulnerable person
personne vulnérable

vulnerable person means any child in the charge of the applicant or respondent and any elderly person or person with a disability who habitually resides in the family home and for whom the applicant or respondent is the caregiver. (personne vulnérable)

Marginal note:Application — no rules under subsection 47(2)

2 (1) These Regulations apply in any province in which a designated judge is authorized to act and in which no rules of practice or procedure have been made under subsection 47(2) of the Act.

Marginal note:Application — justice of the peace

(2) These Regulations also apply in any province in which the designated judge is a justice of the peace, except to the extent that rules of practice or procedure made under provincial law apply to an application under section 16 of the Act.

Application

Making an Application

Marginal note:How to apply

3 (1) An application is made to a designated judge and may be made in person or by telecommunication.

Marginal note:Telecommunication

(2) If an application is made by telecommunication, the applicant or the person acting on the applicant’s behalf must be available to speak to the designated judge by telephone or other means of telecommunication that permits the judge and the applicant or the person acting on the applicant’s behalf to speak directly to one another.

Person Acting for Applicant

Marginal note:Verification of consent

4 (1) Before hearing an application that is made by a person acting on the applicant’s behalf, the designated judge must be satisfied, by evidence given under oath or affirmation, that the person is acting with the applicant’s consent.

Marginal note:Leave to apply without consent

(2) In the absence of consent, before granting leave to a person to make an application on behalf of an applicant without the applicant’s consent, the designated judge must be satisfied, by evidence given under oath or affirmation, that

(a) the person is a peace officer or is an appropriate person to make the application having regard to their occupation, their status in the community, their relationship to the applicant and their knowledge of the applicant’s circumstances;
(b) the person is acting in good faith; and

(c) either

(i) the applicant is for any reason unable to give consent, or
(ii) there are reasonable grounds to believe that, because family violence has occurred, the applicant or a vulnerable person is exposed to an immediate risk of harm or property is exposed to an immediate risk of damage.

Confidentiality Order

Marginal note:Request for confidentiality

5 (1) Before or during the hearing of an application, the applicant or the person acting on the applicant’s behalf may ask the designated judge to order that all or some of the information in the application or disclosed during the hearing be kept confidential. The information to be kept confidential may include the name of the applicant, the respondent, a witness or a vulnerable person as well as any information that is likely to identify them.

Marginal note:Conditions

(2) The designated judge may make a confidentiality order if he or she is satisfied that

(a) confidentiality is necessary for the safety of the applicant or a witness or the safety or physical or emotional well-being of a vulnerable person; or
(b) protection from the undue hardship or adverse effect that could be caused to the applicant, a witness or a vulnerable person by making the information public outweighs the public’s right to the information.

Marginal note:Duty to order confidentiality

(3) The designated judge must make a confidentiality order, whether asked to do so or not, if he or she is satisfied that any information in the application or disclosed during the hearing meets either condition described in subsection (2).

Content of Application

Marginal note:Information to be included

6 During the hearing of the application, the designated judge must ask the applicant, the person acting on the applicant’s behalf or a witness for the following information:

(a) the applicant’s name, date of birth and contact information;
(b) the name and contact information of any person acting on the applicant’s behalf;
(c) the respondent’s name, date of birth and contact information;
(d) the name and date of birth of any vulnerable person and any information that could help the designated judge to consider their best interests;
(e) the name of any person other than the applicant and respondent who has an interest or right in the family home;
(f) the duration of the conjugal relationship between the applicant and respondent;
(g) a description of what the respondent has done or not done that makes the applicant fear for his or her safety or the safety of a vulnerable person or fear damage to property;
(h) a description of any past family violence;
(i) a description of any circumstances that would justify a designated judge in ordering the removal of a person other than the respondent from the family home;
(j) the details and date of any past application for an emergency protection order relating to family violence made under any federal or provincial Act by the applicant or a person acting on the applicant’s behalf;
(k) the details of any order made under the Criminal Code that restricts the respondent’s communication or contact with the applicant or a vulnerable person and the details of any offence against the applicant or a vulnerable person with respect to which the respondent was charged or convicted;
(l) the conditions of any release or parole granted under the Corrections and Conditional Release Act that apply to the applicant in relation to the respondent or to the respondent in relation to the applicant;
(m) the details of any civil emergency protection order, or similar order, whether federal or provincial, relating to family violence and applicable to the applicant or respondent;
(n) the details of any order made under the Divorce Act or the family law of a province and applicable to the applicant and respondent and any agreement between them concerning the custody of or access to children; and
(o) any other information that the designated judge considers necessary.

Hearing

Marginal note:Evidence

7 On receiving an application, the designated judge must hear and consider the allegations and evidence of the applicant or person acting on the applicant’s behalf and may hear and consider any other evidence that is offered.

Marginal note:Oath or affirmation

8 During the hearing of the application, the designated judge must take the evidence under oath or affirmation.

Marginal note:Record of evidence

9 (1) The designated judge must ensure that a legible written record or sound recording of the testimony of each witness is made.

Marginal note:Verification of record

(2) If the designated judge records the testimony of a witness by taking notes, he or she must

(a) ensure that the witness understands the notes and agrees with their content; and
(b) sign and date the notes.

Marginal note:Conduct of hearing

10 The designated judge may conduct the hearing in any manner that he or she considers appropriate to reach a just decision and to put the applicant or person acting on the applicant’s behalf at ease and help them to understand the proceedings.

Marginal note:Adjournment

11 The designated judge may adjourn the hearing at any time to

(a) change the location of the hearing or the manner of making the application to accommodate a witness; or
(b) allow evidence to be heard in person at a time and place directed by the designated judge, if hearing the evidence by telecommunication proves unsatisfactory.

Marginal note:Continuation

12 If the designated judge begins to hear the application but is unable to continue, another designated judge may

(a) continue the hearing if the record of the evidence received by the first judge is available for review; or
(b) begin a new hearing if the record is not available.

Decision

Marginal note:Fast decision

13 The designated judge must conclude the hearing and decide whether to make an emergency protection order. The decision must be made without delay, but in any case within 24 hours after the application is made.

Marginal note:Order forwarded to court

14 A designated judge who must forward to the court in the province in which he or she has jurisdiction a copy of the emergency protection order and supporting materials under subsection 17(1) of the Act must ensure that they are delivered in person or sent by courier or a means of telecommunication that produces an exact copy.

Marginal note:Refusal of order forwarded to court

15 A designated judge who refuses to make an emergency protection order must prepare a written decision that sets out the reasons for refusal and must ensure that a copy of the decision is forwarded, along with all supporting materials, to the court in the province in which he or she has jurisdiction. The copy and supporting materials must be delivered in person or sent by courier or a means of telecommunication that produces an exact copy.

Service and Notice

Transfer of Emergency Protection Order and Caution

Marginal note:Copies to peace officer

16 (1) After making an emergency protection order, the designated judge must, without delay, provide a peace officer with copies of the order and the caution described in section 17 by delivering them in person or sending them by courier or a means of telecommunication that produces an exact copy.

Marginal note:Copy by dictation

(2) The designated judge may also dictate the contents of the order and caution to a peace officer by telephone or other means of telecommunication that permits the designated judge and the peace officer to speak directly to one another. The officer’s record of the dictation constitutes a copy of the order and caution.

Marginal note:Effect of copies

(3) A copy that is provided in accordance with this section has the same effect as the original.

Cautioning of Respondent and Specified Persons

Marginal note:Content

17 The peace officer who serves an emergency protection order on a respondent or a person specified in the order must attach a caution that contains the following information, unless it is already set out in the order:

(a) the name of the respondent and of every person specified in the order;
(b) the name of the designated judge who made the order and the place where it was made;
(c) a statement that the order was made under subsection 16(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act;
(d) the date of the order;
(e) a statement that the order will remain in force until the day set out in the order;
(f) a statement of the possible consequences of failing to comply with the order;

(g) a statement that the respondent and any person specified in the order may, within 21 days after receiving notice of the order, apply to

(i) change the order or any of its provisions,
(ii) shorten or extend the period for which the order or any of its provisions is to remain in force, or
(iii) revoke the order;

(h) the name of the court to which the respondent or person specified in the order may apply under paragraph (g) and the place where the application may be filed; and
(i) a statement that the respondent and any person specified in the order should contact a lawyer immediately for advice about their rights and obligations.

Manner of Serving Emergency Protection Order and Caution

Marginal note:Service

18 (1) When a peace officer is provided with copies of an emergency protection order and caution, service of the respondent and any person specified in the order must, for the purposes of subsection 16(7) of the Act, be carried out without delay.

Marginal note:Methods of service

(2) The peace officer may serve the respondent or specified person

(a) in person;
(b) by fax or email, if the peace officer receives oral or written confirmation from the respondent or specified person that the order and caution have been received; or
(c) by stating the terms of the order and caution to the respondent or specified person by telephone or other means of telecommunication that permits the peace officer and the respondent or specified person to speak directly to one another.

Marginal note:Follow-up

(3) However, if the order and caution are served by the method set out in paragraph (2)(c), the peace officer must, as soon as feasible, provide the respondent or specified person with paper copies of the order and caution in person or provide them by a means of telecommunication that produces an exact copy.

Substituted Service

Marginal note:Substituted service order

19 (1) For the purposes of subsection 16(7) of the Act, on the application of a peace officer, a court may order substituted service of the respondent or a specified person — on the terms and using the method that it considers appropriate — if it is satisfied that no information ordered to be kept confidential under subsection 5(1) will be disclosed and

(a) reasonable efforts have been made to serve the respondent or specified person; or
(b) the respondent or specified person is evading service.

Marginal note:Method of substituted service

(2) For the purposes of this section, substituted service may be made by giving copies of the emergency protection order and caution to

(a) a member of the band council or an elder on the reserve where the respondent or specified person resides who is able to and agrees to give them to the respondent or specified person without delay;
(b) an adult (other than the applicant) who resides with the respondent or specified person and who is able to and agrees to give them to the respondent or specified person without delay;
(c) an adult (other than the applicant) who knows the respondent or specified person and who is able to and agrees to give them to the respondent or specified person without delay; or
(d) an adult at the respondent or specified person’s last known business or employment address (other than the applicant’s business or employment address) who is able to and agrees to give them to the respondent or specified person without delay.

Marginal note:Application by peace officer

(3) An application for a substituted service order must describe the attempts of the peace officer to serve the respondent or specified person and set out the grounds of the application.

Definition of adult
(4) For the purposes of subsection (2), adult means a person who has reached the age of majority in the province in which the order and caution are served.

Notice and Service on Applicant

Marginal note:Notice of service

20 (1) For the purpose of informing an applicant that the respondent or a person specified in the emergency protection order has been served, a peace officer must speak to the applicant or person acting on the applicant’s behalf in person or by telephone or other means of telecommunication that permits the peace officer and the applicant, or the person acting on the applicant’s behalf, to speak directly to one another.

Marginal note:Service in person

(2) When the information is given in person, the peace officer must at the same time serve the applicant or person acting on the applicant’s behalf with copies of the emergency protection order and caution unless he or she already has copies of those documents.

Marginal note:Service using telecommunication

(3) When the information is given by telecommunication, unless the applicant or the person acting on the applicant’s behalf already has copies of the order and caution, the peace officer must, as soon as feasible, serve paper copies of those documents in person or serve them by a means of telecommunication that produces an exact copy.

Marginal note:Duty of person acting for applicant

(4) When a person acting on an applicant’s behalf is informed that the respondent or specified person has been served, he or she must inform the applicant without delay.

Marginal note:Duty of person acting for applicant

(5) When a person acting on an applicant’s behalf is served with copies of the order and caution, he or she must give them to the applicant without delay.

Notice of Refusal

Marginal note:Notice of refusal

21 (1) A designated judge who refuses to make an emergency protection order must inform the applicant or person acting on the applicant’s behalf of the refusal without delay, in person or by telephone or other means of telecommunication that permits the judge and the applicant, or the person acting for the applicant, to speak directly to one another.

Marginal note:Duty of person acting for applicant

(2) When a person acting on an applicant’s behalf is informed that an order has been refused, he or she must inform the applicant of the refusal without delay.

Coming into Force

Marginal note:Registration

22 These Regulations come into force on the day on which they are registered.