Bill 10 2007

An Act, in memory of Lori Dupont, to better protect victims of domestic violence

 

CONTENTS
Preamble
1.   2.   3.   4.   5.   6.   7.   8.   9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.	Definitions Applicants Intervention order Emergency intervention order Availability of emergency intervention orders Request for hearing Powers of court at hearing Service Orders immediately effective Motion to vary or terminate order Civil orders to be considered Appeal Property ownership not affected by order Designated judges, justices of the peace Protection from personal liability No other rights of action affected Prohibition Rules of court Attorney General may require rules Regulations
Consequential Amendments
21. 22. 23.	Children's Law Reform Act Courts of Justice Act Family Law Act
Repeal, Commencement and Short Title
24. 25. 26.	Repeal Commencement Short title
______________

 

Preamble

Over the past few years, hundreds of women have fallen victim to domestic violence in Ontario.  On November 12, 2005, Lori Dupont, a nurse and a mother, was killed by a man who had been a former partner. Despite her efforts to obtain a peace bond to keep him away, the court process dragged on.

Domestic violence is not just a crime against the person abused.  It deeply affects children who witness violence in the family and destabilizes families. In the broadest sense, domestic violence is a crime against the foundation of an orderly society: strong families.

November 25 is designated by the United Nations General Assembly Resolution 54/134 as "International Day for the Elimination of Violence against Women".  The General Assembly invited governments to organize activities designated to raise public awareness of the problem on this day.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

   1.  (1)  In this Act,

"applicant" means an applicant for an intervention order or an emergency intervention order; ("requérant")

"child" means a person under the age of 18; ("enfant")

"cohabit" means to live together in a conjugal relationship, whether within or outside marriage; ("cohabiter")

"court" means the Superior Court of Justice; ("tribunal")

"designated judge or justice" means a judge of the Ontario Court of Justice or justice of the peace designated under section 14; ("juge désigné")

"emergency intervention order" means an order made under section 4; ("ordonnance d'intervention d'urgence")

"intervention order" means an order made under section 3; ("ordonnance d'intervention")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"relative" means any person related to another person by blood, marriage or adoption; ("parent")

"residence" includes a residence that a person has vacated due to domestic violence; ("résidence")

"respondent" means the respondent to an application for an intervention order or an emergency intervention order; ("intimé")

"weapon" means weapon as defined in the Criminal Code (Canada). ("arme")

Domestic violence

   (2)  For the purposes of this Act, domestic violence means the following acts committed against an applicant, an applicant's relative or any child:

    1.  An assault that consists of the intentional application of force that causes the applicant to fear for his or her safety, but does not include any act committed in self-defence.

    2.  An intentional or reckless act that causes bodily harm.

    3.  An act or threatened act that causes the applicant to fear for his or her safety.

    4.  Forced physical confinement, without lawful authority.

    5.  Sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation.

    6.  A series of acts which collectively causes the applicant to fear for his or her safety, including following, contacting, communicating with, observing or recording any person.

Same

   (3)  Domestic violence may be found to have occurred for the purposes of this Act whether or not, in respect of any act described in subsection (2), a charge has been laid or dismissed or withdrawn or a conviction has been or could be obtained.

Applicants

   2.  (1)  Subject to subsection (2), the following persons may apply for an intervention order or an emergency intervention order:

    1.  A spouse or former spouse of the respondent.

    2.  A person who is cohabiting with the respondent, or who has cohabited with the respondent for any period of time, whether or not they are cohabiting at the time of the application.

    3.  A person who is or was in a dating relationship with the respondent.

    4.  A relative of the respondent who resides with the respondent.

Definition

   (2)  In subsection (1),

"spouse" means spouse as defined in Part III of the Family Law Act.

Age restriction

   (3)  A person must be at least 16 years old to apply for, or be the respondent to an application for, an intervention order or an emergency intervention order.

Intervention order

   3.  (1)  On application with notice to the respondent, the court may make a temporary or final intervention order if it is satisfied on a balance of probabilities that,

  (a)  domestic violence has occurred; and

  (b)  a person may be at risk of harm.

Contents of order

   (2)  An intervention order may contain any or all of the following provisions that the court considers appropriate in the circumstances for the protection of any person that may be at risk of harm or for the assistance of the applicant or any child:

    1.  Restraining the respondent from attending at or near, or entering, any place that is attended regularly by the applicant, a relative of the applicant, any child or any other specified person, including a residence, property, business, school or place of employment.

    2.  Restraining the respondent from engaging in any specified conduct that is threatening or harassing to the applicant, a relative of the applicant or any child.

    3.  Requiring the respondent to vacate the applicant's residence, either immediately or within a specified period of time.

    4.  Requiring a peace officer, within a specified period of time, to accompany the applicant, respondent or a specified person to the applicant's residence and supervise the removal of that person's or another named person's belongings.

    5.  Restraining the respondent from contacting or communicating with the applicant or any other specified person, directly or indirectly.

    6.  Restraining the respondent from following the applicant or any other specified person from place to place, or from being within a specified distance of the applicant or other specified person.

    7.  Requiring a peace officer to seize,

            i.  any weapons where the weapons have been used or have been threatened to be used to commit domestic violence, and

           ii.  any documents that authorize the respondent to own, possess or control a weapon described in subparagraph i.

    8.  Granting the applicant exclusive possession of the residence shared by the applicant and the respondent, regardless of ownership.

    9.  Granting the applicant or respondent temporary possession and exclusive use of specified personal property.

  10.  Requiring the respondent to attend specified counselling.

Other proceedings

   (3)  An application under this section shall contain a summary of all previous and current court proceedings and orders affecting the applicant and respondent, including all applications and orders under this Act.

Terms

   (4)  Subject to subsection (5), any provision of an intervention order described in subsection (2) may be subject to such terms as the court considers appropriate, including a term that specifies the period of time for which the provision shall be in force.

Order respecting weapons

   (5)  A provision of an intervention order described in paragraph 7 of subsection (2) shall cease to be in force if an order or final determination with respect to the respondent's ownership, possession or control of weapons is made under the Criminal Code (Canada) or the Firearms Act (Canada).

Enforcement

   (6)  A provision of an intervention order described in paragraph 1, 2, 3, 4, 5, 6, 7 or 8 of subsection (2) shall be enforced by peace officers under the Criminal Code (Canada).

Same

   (7)  A provision of an intervention order described in paragraph  9 or 10 of subsection (2) may be secured by a requirement that the respondent,

  (a)  post a bond in the form and amount that the court considers appropriate; or

  (b)  enter into a recognizance in a form acceptable to the court.

Emergency intervention order

   4.  (1)  On application, without notice to the respondent, the court or a designated judge or justice may make an emergency intervention order if the court or designated judge or justice is satisfied on a balance of probabilities that,

  (a)  domestic violence has occurred;

  (b)  a person is at risk of harm; and

   (c)  the matter must be dealt with on an urgent and temporary basis for the protection of the person that is at risk of harm.

Other proceedings

   (2)  An application under this section shall contain a summary of all previous and current court proceedings and orders affecting the applicant and respondent, including all applications and orders under this Act.

Use of telecommunication

   (3)  An application to a designated judge or justice under subsection (1) may be made and adjudicated by telephone or by a means of telecommunication that produces a writing.

Same

   (4)  Despite any other Act, for the purposes of subsection (3),

  (a)  evidence may be provided, under oath,

           (i)  by telephone, or

          (ii)  by a means of telecommunication that produces a writing; and

  (b)  when evidence is provided as described in subclause (a) (i) or (ii), the oath may be administered by telephone.

Contents of emergency intervention order

   (5)  An emergency intervention order may only contain a provision that the court could include in an intervention order under paragraph 1, 2, 3, 4, 5, 6 or 7 of subsection 3 (2) which the court or designated judge or justice considers appropriate in the circumstances for the urgent protection of a person that is at risk of harm.

Terms

   (6)  Subject to subsection (7), any provision of an emergency intervention order may be subject to such terms as the court or designated judge or justice, as the case may be, considers appropriate, including a term that specifies the period of time for which the provision shall be in force.

Order respecting weapons

   (7)  A provision of an emergency intervention order described in paragraph 7 of subsection 3 (2) shall cease to be in force if an order or final determination with respect to the respondent's ownership, possession or control of weapons is made under the Criminal Code (Canada) or the Firearms Act (Canada).

Enforcement

   (8)  A provision of an emergency intervention order shall be enforced by peace officers under the Criminal Code (Canada).

Priority over civil orders

   (9)  An emergency intervention order prevails over any order made under the Children's Law Reform Act, the Divorce Act (Canada) or the Family Law Act against or affecting the applicant or respondent or any child.

Right to hearing

   (10)  Every applicant and respondent is entitled to a hearing before the court for the purpose of asking for the variation or termination of the emergency intervention order if either one requests a hearing within 30 days after the respondent is served with the order.

Notice in order

   (11)  Every emergency intervention order shall,

  (a)  advise the applicant and the respondent of the right described in subsection (10); and

  (b)  set out the procedures to be followed in order to make the request described in subsection (10).

Review by court

   (12)  Upon making an emergency intervention order, a designated judge or justice shall promptly forward a copy of the order and all supporting documentation, including any reasons for the order, to the court.

Availability of emergency intervention orders

   5.  (1)  In a location that is designated by a regulation made under clause 20 (1) (c), a designated judge or justice shall be available to hear applications under section 4 on the basis of the schedule prescribed for that location under clause 20 (1) (d).

Purpose of subs. (1)

   (2)  The purpose of subsection (1) is to facilitate proceeding in phases towards the goal of making emergency intervention orders available on a 24-hour a day basis seven days a week throughout Ontario.

Request for hearing

   6.  (1)  Upon receiving a request for a hearing in respect of an emergency intervention order from the applicant or respondent within the required 30-day period, the clerk of the court shall set a date for the hearing of the matter, which shall be not later than 14 days after the date the court received the request for the hearing.

Notice of hearing under subs. (1)

   (2)  If a date for a hearing of the matter is set under subsection (1), the clerk of the court shall notify the applicant and respondent of the date of the hearing.

No stay of order

   (3)  An emergency intervention order that is the subject of a request for a hearing by the applicant or respondent remains in force and is not stayed by the making of the request.

If no request for hearing re court order

   (4)  If no request is made within the required 30-day period in respect of an emergency intervention order made by the court, the emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court on the day after the expiry of the required 30-day period.

Confirmation or order for hearing

   (5)  If a request for a hearing in respect of an emergency intervention order made by a designated judge or justice is not made by the applicant or respondent within the required 30-day period, a judge of the court shall review the emergency intervention order and the supporting documentation, without holding a hearing, and,

  (a)  shall confirm the order if the judge is satisfied that there was evidence before the designated judge or justice to support the granting of the order; or

  (b)  shall order a hearing of the matter if the judge is not satisfied that there was evidence before the designated judge or justice to support the granting of the order or is not satisfied that the evidence before the designated judge or justice supported one or more of the provisions contained in the order.

Notice of confirmation

   (6)  If the judge confirms the emergency intervention order under clause (5) (a), the confirmed emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court and the clerk of the court shall notify the applicant and respondent of the confirmation.

Notice of hearing under cl. (5) (b)

   (7)  If a hearing of the matter is ordered under clause (5) (b), the clerk of the court shall notify the applicant and respondent of the date of the hearing, which shall be not later than 14 days after the date of the order under that clause.

Powers of court at hearing

   7.  (1)  At a hearing set or ordered under section 6, the court may confirm, vary or terminate the emergency intervention order and section 3, including paragraphs 8 to 10 of subsection 3 (2), applies to the hearing and the order with necessary modifications.

Conduct of hearing

   (2)  A hearing under this section shall be a new hearing and, in addition to any new evidence brought before the court, the court shall consider the evidence that was before the designated judge or justice or court that made the emergency intervention order.

Confirmed or varied order

   (3)  If the court confirms or varies the emergency intervention order, the confirmed or varied emergency intervention order shall be deemed, for all purposes, to be an intervention order made by the court.

Service

   8.  (1)  An intervention order made by the court under section 3 or 7 shall be served on the respondent,

  (a)  by a peace officer, if the court so directs;

  (b)  by the applicant's counsel or agent;

   (c)  by the court, if the applicant was unrepresented before the court; or

  (d)  in any other prescribed manner.

Same

   (2)  An emergency intervention order shall be served on the respondent in the prescribed manner.

Substituted service

   (3)  If the court is satisfied at any time that service cannot be effected by a means described in subsection (1) or (2), it may make an order for substituted service on the respondent, whether or not any attempt has yet been made to serve the respondent.

Same

   (4)  If a designated judge or justice is satisfied at any time that service cannot be effected by a means described in subsection (2), he or she may make an order for substituted service on the respondent, whether or not any attempt has yet been made to serve the respondent.

Sunday service

   (5)  Despite section 124 of the Courts of Justice Act, an emergency intervention order may be served on a Sunday without leave of the court.

Orders immediately effective

   9.  (1)  An intervention order and an emergency intervention order are effective immediately upon being made.

Not enforceable without service or notice

   (2)  Despite subsection (1), an intervention order or an emergency intervention order is not enforceable against the respondent unless the respondent,

  (a)  has been served with the order; or

  (b)  has received notice of the order.

Motion to vary or terminate order

   10.  (1)  The applicant or respondent to an intervention order may make a motion to the court at any time, upon notice to the other party, to vary or terminate the order.

Order to vary or terminate

   (2)  If the court is satisfied, upon a motion under subsection (1), that there has been a material change in circumstances since the intervention order was made, the court may vary or terminate the order.

No stay of order

   (3)  The intervention order that is the subject of a motion under this section remains in force and is not stayed by the bringing of the motion.

Civil orders to be considered

   11.  In a review of an emergency intervention order by a judge under subsection 6 (5), at a hearing under section 7 or on a motion to vary or terminate an intervention order under section 10, the judge shall,

  (a)  consider any outstanding orders made under the Children's Law Reform Act or the Family Law Act against or affecting the applicant or respondent or any child and may, if he or she considers it appropriate and if it is authorized under the Act under which each such order is made, vary, amend or rescind any of those orders under the Act under which it is made to the extent necessary in order to provide protection under an intervention order; and

  (b)  consider any outstanding orders made under the Divorce Act (Canada) against or affecting the applicant or respondent or any child and may consider whether it would be appropriate under the Divorce Act (Canada) to vary, amend or rescind any of those orders.

Appeal

   12.  An appeal from an intervention order may be made to the Divisional Court.

Property ownership not affected by order

   13.  (1)  Except as provided by paragraph 7 of subsection 3 (2), an intervention order or an emergency intervention order does not in any manner affect the title to or an ownership interest in any real or personal property jointly held by the applicant and respondent or solely held by one of them.

Exclusive possession of leased residence

   (2)  Where a residence is leased by a respondent pursuant to an oral, written or implied agreement and an applicant who is not a party to the lease is granted exclusive possession of that residence as permitted by paragraph 8 of subsection 3 (2), no landlord shall evict the applicant solely because the applicant is not a party to the lease.

Same

   (3)  On the request of an applicant mentioned in subsection (2), the landlord shall advise the applicant of the status of the lease and serve the applicant with notice of any claim against the respondent arising from the lease and the applicant, at his or her option, may assume the responsibilities of the respondent under the lease.

Designated judges, justices of the peace

   14.  The Chief Justice of the Ontario Court of Justice shall designate the judges of the Ontario Court of Justice and justices of the peace who may hear applications under section 4.

Protection from personal liability

   15.  No action or other proceeding shall be instituted against a peace officer, clerk of the court or any other person for any act done in good faith or for any alleged neglect or default in good faith, in the execution or intended execution of,

  (a)  the person's duty under this Act; or

  (b)  the person's duty to carry out the provisions of an order made under this Act.

No other rights of action affected

   16.  An application for an intervention order or an emergency intervention order under this Act is in addition to and does not diminish any existing right of action for the applicant or for any other victim of domestic violence.

Prohibition

   17.  (1)  No person shall, in making an application or motion under this Act, commit perjury or public mischief within the meaning of the Criminal Code (Canada).

Enforcement

   (2)  Subsection (1) shall be enforced by peace officers under the Criminal Code (Canada).

Rules of court

   18.  (1)  Subject to the approval of the Lieutenant Governor in Council, the Family Rules Committee may make rules under section 68 of the Courts of Justice Act in relation to the practice and procedure in proceedings under this Act, including rules,

  (a)  governing applications for intervention orders and emergency intervention orders;

  (b)  governing the procedures for requesting a hearing in respect of an emergency intervention order;

   (c)  governing the procedures for conducting a hearing described in clause (b);

  (d)  governing the service of any order made under this Act and any notice required to be given under this Act, but not prescribing a manner of serving intervention orders and emergency intervention orders for the purpose of section 8;

  (e)  prescribing the contents of intervention orders and emergency intervention orders;

    (f)  prescribing forms.

Rules to provide expeditious access to judicial system

   (2)  The rules of court applicable to the practice and procedure in proceedings under this Act shall be designed to provide applicants and respondents expeditious access to the judicial system.

No fees for application, etc.

   (3)  No fee may be prescribed under the Administration of Justice Act for any application, request or motion under this Act.

Attorney General may require rules

   19.  (1)  The Attorney General may require that the Family Rules Committee make, amend or revoke a rule that it has the authority to make, amend or revoke, as described in section 18.

Regulation may be made if rule is not

   (2)  If the Family Rules Committee does not make, amend or revoke a rule as required by the Attorney General within 60 days after receiving the Attorney General's requirement in writing, the Lieutenant Governor in Council may make a regulation that carries out the intent of the Attorney General's requirement.

Different application to different areas

   (3)  A regulation made under subsection (2) may contain different rules, requirements and provisions for different areas of Ontario.

Regulation prevails over rule

   (4)  A regulation made under subsection (2) may amend or revoke a rule of court and, in the event of a conflict between a regulation made under subsection (2) and the rules of court, the regulation prevails.

Regulations

   20.  (1)  The Lieutenant Governor in Council may make regulations,

  (a)  respecting the seizure, retention, return or disposal of items required to be seized pursuant to a provision in an intervention order or an emergency intervention order described in paragraph 7 of subsection 3 (2), including authorizing the court or a designated judge or justice to issue a warrant authorizing the entry and search of a dwelling or other place;

  (b)  governing methods of applying to a designated judge or justice for an emergency intervention order;

   (c)  designating locations for the purpose of section 5;

  (d)  prescribing a schedule for a location designated under clause (c);

  (e)  prescribing manners of serving intervention orders and emergency intervention orders for the purpose of section 8;

    (f)  requiring the court or a designated judge or justice to send a copy of an order made under this Act to any person specified by the regulations;

  (g)  respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out effectively the intent and purpose of this Act.

Schedule

   (2)  A schedule prescribed under clause (1) (d) may provide for availability on a 24-hour a day basis seven days a week or on any other basis.

Different application to different areas

   (3)  A regulation made under subsection (1) may contain different rules, requirements and provisions for different areas of Ontario.

Consequential Amendments

Children's Law Reform Act

   21.  (1)  Section 35 of the Children's Law Reform Act is repealed.

   (2)  The Act is amended by adding the following section:

   35.1  Despite the repeal of section 35,

  (a)  any proceeding begun under that section before its repeal shall continue as if section 35 were still in force; and

  (b)  any order made under section 35 before its repeal or pursuant to clause (a), after its repeal, remains in force until it terminates by its own terms or is rescinded or terminated by a court.

Courts of Justice Act

   22.  (1)  Paragraph 1.1 of the Schedule to section 21.8 of the Courts of Justice Act is repealed and the following substituted:

  1.1  Proceedings under the Lori Dupont Act (Domestic Violence Protection), 2007, except for matters heard by designated judges or justices as that Act permits.

   (2)  Subsection 68 (5) of the Act is repealed and the following substituted:

Lori Dupont Act (Domestic Violence Protection), 2007

   (5)  Despite paragraph 1.1 of the Schedule to section 21.8, the rule-making authority of the Family Rules Committee extends to the entire Lori Dupont Act (Domestic Violence Protection), 2007, including the activities of designated judges and justices.

Family Law Act

   23.  (1)  Section 46 of the Family Law Act is repealed.

   (2)  The Act is amended by adding the following section:

   46.1  Despite the repeal of section 46,

  (a)  any proceeding begun under that section before its repeal shall continue as if section 46 were still in force; and

  (b)  any order made under section 46 before its repeal or pursuant to clause (a), after its repeal, remains in force until it terminates by its own terms or is rescinded or terminated by a court.

Repeal, Commencement and Short Title

Repeal

   24.  The Domestic Violence Protection Act, 2000 is repealed.

Commencement

   25.  This Act comes into force on the day it receives Royal Assent.

Short title

   26.  The short title of this Act is the Lori Dupont Act (Domestic Violence Protection), 2007.

 

EXPLANATORY NOTE

The Bill repeals and replaces the Domestic Violence Protection Act, 2000.

The Bill changes the definition of domestic violence from the 2000 Act to exclude omissions and to exclude damage to property.  The Superior Court of Justice can no longer make an intervention order requiring the respondent to pay the applicant compensation for monetary losses or restraining the respondent from dealing with property in which the applicant has an interest.

The Bill comes into force on Royal Assent, not by proclamation of the Lieutenant Governor as in the case of the 2000 Act.