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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
+++ Victims of Family Violence Act +
 
Legislature :
55
Session :
1
Bill No. :
51
Member :
Mr. Murphy
First Reading :
2004-5-21
Second Reading :
Committee of the Whole :
Amended :
Third Reading :
Royal Assent :
Download PDF :
  Bill 51         
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Text of Bill :
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                           The following definitions apply in this Act.



"child" means a person who ordinarily or periodically resides with the victim, is under the age of eighteen years and unmarried, whether or not he or she is related to the victim or the respondent. (enfant)



"clerk" means the administrator of the Family Court. (greffier)



"court" means the Family Division of The Court of Queen's Bench unless context dictates otherwise in Part II where it means The Court of Queen's Bench, Trial division, unless context dictates otherwise. (cour)



"emergency protection order" means an order made pursuant to section 4. (ordonnance de protection urgente)   



"judge" means judge of the court, unless context dictates otherwise. (juge)



"Minister" means the Minister of Family and Community Services. (ministre)



"property" means any interest, vested or contingent, in real or personal property. (propriété)



"residence" means a place where a victim normally resides, and includes any residence that a victim has vacated as a consequence of family violence. (résidence)



"respondent" means any person against whom an order is sought or made under this Act. (répondant)



"victim" means



(a)               a person who is residing, or has resided, with the respondent in a family relationship; or



(b)               a person who, with the respondent, is a parent of one or more children, regardless of marital status and whether the victim and respondent have lived together at any time,



who seeks an order against the respondent under this Act. (victime)



"victim assistance order" means an order made pursuant to section 6. (ordonnance d'assistance à la victime)



"victim services" means any victim services program established pursuant to provincial legislation. (services à la victime)



2(1)                              "family violence" is violence against a person by an individual with whom that person is, or has been, in a family relationship, and without restricting the generality of the foregoing includes



(a)               any assault on the victim;



(b)               any reckless act or omission that causes injury to the victim or damage to property;



(c)               any act or threat that causes a reasonable fear of injury to the victim or damage to property;



(d)                      forced confinement of the victim;



(e)               acts or threats of sexual, physical, or emotional abuse of the victim; or



(f)                      depriving a victim of food, clothing, medical attention, shelter, transportation or other necessities of life. (violence familiale)



2(2)                   For the purposes of this Act, a respondent who encourages or solicits another person to do an act which, if done by the respondent, would constitute family violence against the victim, is deemed to have done that act personally.



3                           The purpose of this Act is to reduce and prevent family violence and to facilitate legal protection for victims by providing speedy civil remedies as set out in Part I and further to provide compensation for general and special damages as set out in Part II.



PART I

4(1)                   A judge on motion, in a form to be prescribed by regulation, of any person listed in subsection (5), may, without notice to any other person, make an emergency protection order if he or she determines that



(a)                      family violence has occurred; and



(b)               the seriousness or urgency of the circumstances merits the making of the order.



4(2)                   In determining whether to make an order, the judge shall consider



(a)               the nature of the family violence;



(b)               the history of family violence by the respondent towards the victim, and whether it is probable that the respondent will perpetrate acts of family violence in the future;



(c)               the existence of immediate danger to the victim, other persons, or property; and



(d)               the best interests of the victim and any child or other person in the care of the victim.



4(3)                   An emergency protection order may contain any or all of the following:



(a)               a provision granting the victim or other family members exclusive occupation of the residence for a defined period, irrespective of any rights of possession or ownership vested in the respondent;



(b)               a provision directing a peace officer to remove the respondent from the residence immediately or within a specified period;



(c)               a provision directing a peace officer to accompany a specified person, within a specified time, to the residence to supervise the removal of personal belongings;



(d)               a provision restraining the respondent from directly or indirectly communicating with the victim or other specified persons;



(e)               a provision requiring the respondent to stay away from any place identified specifically or generally in the order;



(f)                a provision awarding temporary care and custody of a child to the victim or some other person;



(g)               a provision granting temporary possession of specified personal property, including, but not limited to, an automobile, cheque book, bank card, health services card, or supplementary medical insurance cards, identification documents, keys, or other personal effects;



(h)               a provision restraining the respondent from taking, converting, damaging or otherwise dealing with property;



(i)                a provision restraining the respondent from terminating the basic utilities servicing the residence;



(j)                a provision restraining the respondent from committing any further acts of family violence against the victim;



(k)               a provision prohibiting the publication of the name and address of the victim;



(l)                a provision requiring the respondent to make the rent or mortgage payments arising in respect of the residence; and



(m)             any other provision that the court considers necessary to provide for the immediate protection of the victim or other family members.



4(4)                              Subject to subsection 5(1), an emergency protection order takes effect on issuance.



4(5)                   An application for an emergency protection order may be made by



(a)               a victim;



(b)               a member of a category of persons designated in the regulations on behalf of, and with the consent of, the victim; or



(c)               if the victim is incapable of giving consent,



(i)         a parent or guardian of the victim, acting on the victim's behalf; or



(ii)       any other person acting on behalf of the victim with the leave of a judge.



4(6)                   An application for an emergency protection order may be made in person, by telephone, or by any other means acceptable to the judge.



5(1)                   A respondent is not bound by an emergency protection order until he or she has notice of the order.



5(2)                              Notice to the respondent of an emergency protection order shall be given in a manner to be prescribed by regulation.



5(3)                   If, on application to a judge, it appears that



(a)                      attempts at service or substituted service of the notice on the respondent have failed; and



(b)               the respondent is intentionally evading service,



the judge may by order dispense with service of the notice, and the respondent shall be deemed to have notice of the emergency protection order.



6(1)                              Where, on application, in a form to be prescribed by regulation, by a victim to a judge of the court, the judge determines that family violence has occurred, the judge, within ten days of receipt of the application, or as soon as possible after that, may make a victim assistance order containing any or all of the following:



(a)               any of the provisions referred to in subsection 4(3);



(b)               a provision for access to children on such terms as the judge may determine, but in making such provision the court shall give paramount consideration to the safety and well-being of the victim and the children; and



(c)               any other provision that the judge considers appropriate.



6(2)                   The judge may make a victim assistance order subject to such conditions as the judge considers appropriate.



6(3)                   The existence of any other proceedings between the victim and the respondent does not preclude the judge from making a victim assistance order.



7(1)                   On an application under section 6, the standard of proof for the judge's conclusion that family violence occurred shall be on a balance of probabilities.



7(2)                   The clerk shall forward a copy of any orders made by the court to a peace officer, victim services, and the Department of Family and Community Services in the areas where the family violence occurred and in which the victim and respondent severally reside.



7(3)                   The peace officer who receives an emergency protection order or a victim assistance order shall cause it to be maintained in the files of his or her employer for the duration of the order.



8(1)                   At any time after a respondent has been served with an emergency protection order or a victim assistance order, the court, on application by a victim or respondent named in the emergency protection order or victim assistance order, may



(a)               make changes to, or terminate, any provision of an emergency protection order or victim assistance order;



(b)                      decrease or extend the period for which any provision in an emergency protection order or victim assistance order is to remain in force; or



(c)                      revoke the emergency protection order or victim assistance order.



8(2)                   On an application pursuant to subsection (1)



(a)               the evidence before the court on previous applications pursuant to this Act shall be considered in evidence; and



(b)               the respondent and the applicant severally have the right to be heard and the right to examine and cross-examine witnesses.



8(3)                              Unless otherwise ordered by the court, an emergency protection order or victim assistance order is not stayed by an application under subsection (1).



8(4)                   Any provision in an emergency protection order or victim assistance order is subject to and varied by any subsequent emergency protection order, victim assistance order, or other order made pursuant to any other Act or Act of Parliament.



8(5)                              Where an emergency protection order is varied, the new version shall be served on the respondent in a form to be prescribed by regulation.



9(1)                   Upon request of the victim, the clerk shall keep the victim's address confidential.



9(2)                   The court may exclude the public from a hearing, or any part thereof, where, in the opinion of the presiding judge, the possibility of an injustice, hardship, or other adverse effect to a victim or a child outweighs the interest of holding the hearing in public.



9(3)                   Upon request of the victim, the court may by order prohibit the public disclosure of a report of a hearing or any part of a hearing, or prohibit publication of any matter connected with an emergency protection order or victim assistance order, where in the opinion of the court, such disclosure or publication would



(a)               not be in the best interests of a victim or a child; or



(b)               be likely to identify, have an adverse effect on, or cause hardship to the victim or child.



9(4)                   A court order made pursuant to subsection (3) does not preclude access to court files with the consent of a judge for research or statistical purposes, where there is no public disclosure of individual names or other information that could identify persons named in any report, hearing, or other matter prohibited from being disclosed by order made pursuant to this section.



10(1)               An emergency protection order or victim assistance order does not affect the title to, or ownership interest in, any property jointly held by the parties, solely held by one of the parties, or held by one of the parties with a third party.



10(2)                              Where a residence is leased by a respondent pursuant to an oral, written or implied agreement and a victim who is not a party to the lease is granted exclusive occupation of that residence, no landlord shall evict the victim solely on the basis that the victim is not a party to the lease.



10(3)               Upon the request of a victim referred to in subsection (2) the landlord shall advise the victim of the status of the lease and serve the victim with notice of any claim against the respondent arising from the lease and the victim may, at his or her option, assume the respondent's responsibilities under the lease.



11(1)               The clerk shall supply the forms for applications under this Act, and shall render assistance to victims in completing the forms.



11(2)               The clerk shall cause all notices and other documents required for an application under this Act to be served, and such notices and documents may, upon the direction of the clerk, be served by a peace officer or sheriff.



11(3)               The court may order the respondent to pay any fees for filing and service of documents.



12                        No action lies against a peace officer, the clerk, a representative of victim services, or any other person for any loss or damage suffered by a person by reason of anything done in good faith, caused, permitted, or authorized to be done



(a)                      pursuant to, in exercise of, or in purported exercise of any power conferred by this Act or by a regulation made under this Act; or



(b)               in carrying out, or the purported carrying out, of any decision, duty, or order made or imposed under this Act or its regulations.



13                        Any person who



(a)               fails to comply with the provisions of an emergency protection order or a victim assistance order;



(b)                      falsely and maliciously makes an application under this Act;



(c)                      obstructs any person who is performing any function authorized by an emergency protection order or a victim assistance order; or



(d)                      publishes any information in contravention of an emergency protection order or a victim assistance order,



in respect of a first offence commits a Category H offence under the Provincial Offences Procedures Act, and in respect of a second or subsequent offence commits a Category J offence under the Provincial Offences Procedures Act.



14                        A peace officer may arrest without warrant a person the peace officer believes on reasonable and probable grounds to have contravened any terms of an order made under this Act.



PART II

15(1)               A victim may bring an action in the court for general and special damages against a respondent exclusive of, and in addition to, the other remedies granted by this Act and remedies available under any other Act or Act or Parliament.



15(2)               A victim may bring an action in the court for general damages for pain, suffering, and loss of amenities of life caused by any act of family violence.



15(3)               A victim may bring an action in the court for special damages for any loss caused by an act of family violence.



15(4)               The pursuance of an action under this part shall not preclude the pursuance of any orders under Part I, nor any other actions brought pursuant to provincial legislation or any Act of Parliament.



16                        The Lieutenant-Governor in Council may make regulations



(a)                      defining any word or phrase used in this Act;



(b)                      prescribing forms and fees for the purposes of this Act, and providing for waiver of fees;



(c)                      prescribing the procedures to be followed for applications and hearings under this Act;



(d)                      designating persons or categories of persons who may make applications for an emergency protection order on behalf of a victim with the victim's consent;



(e)                      prescribing the form and manner of providing any notice or summons required to be provided pursuant to this Act, including methods of substituted service and a rebuttable presumption of service;



(f)                      prescribing any other matter or thing required or authorized by this Act to be prescribed by regulation; or



(g)                      generally, to give effect to the purpose of this Act.



17                        This Act or any provision of it comes into force on a day or days to be fixed by Proclamation.
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Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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