FAMILY HOMES ON RESERVES AND MATRIMONIAL INTERESTS OR RIGHTS ACTEmergency Protection Orders RegulationsP.C.2014-1269201411
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Whereas 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 Acta;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 Acta, makes the annexed Emergency Protection Orders Regulations.S.C. 2013, c. 20InterpretationDefinitionsThe following definitions apply in these Regulations.Act means the Family Homes on Reserves and Matrimonial Interests or Rights Act. (Loi)applicant means the person who makes an application, whether or not they are represented by another person who acts on their behalf. (demandeur)application means an application for an emergency protection order under subsection 16(1) of the Act. (demande)family violence has the same meaning as in subsection 16(9) of the Act. (violence familiale)respondent means the spouse or common-law partner of an applicant. (défendeur)telecommunication includes communication by telephone, email or fax. (télécommunication)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)Application — no rules under subsection 47(2)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.Application — justice of the peaceThese 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.ApplicationMaking an ApplicationHow to applyAn application is made to a designated judge and may be made in person or by telecommunication.TelecommunicationIf 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 ApplicantVerification of consentBefore 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.Leave to apply without consentIn 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, thatthe 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;the person is acting in good faith; andeitherthe applicant is for any reason unable to give consent, orthere 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 OrderRequest for confidentialityBefore 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.ConditionsThe designated judge may make a confidentiality order if he or she is satisfied thatconfidentiality is necessary for the safety of the applicant or a witness or the safety or physical or emotional well-being of a vulnerable person; orprotection 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.Duty to order confidentialityThe 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 ApplicationInformation to be includedDuring 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:the applicant’s name, date of birth and contact information;the name and contact information of any person acting on the applicant’s behalf;the respondent’s name, date of birth and contact information;the name and date of birth of any vulnerable person and any information that could help the designated judge to consider their best interests;the name of any person other than the applicant and respondent who has an interest or right in the family home;the duration of the conjugal relationship between the applicant and respondent;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;a description of any past family violence;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;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;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;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;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;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; andany other information that the designated judge considers necessary.HearingEvidenceOn 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.Oath or affirmationDuring the hearing of the application, the designated judge must take the evidence under oath or affirmation.Record of evidenceThe designated judge must ensure that a legible written record or sound recording of the testimony of each witness is made.Verification of recordIf the designated judge records the testimony of a witness by taking notes, he or she mustensure that the witness understands the notes and agrees with their content; andsign and date the notes.Conduct of hearingThe 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.AdjournmentThe designated judge may adjourn the hearing at any time tochange the location of the hearing or the manner of making the application to accommodate a witness; orallow evidence to be heard in person at a time and place directed by the designated judge, if hearing the evidence by telecommunication proves unsatisfactory.ContinuationIf the designated judge begins to hear the application but is unable to continue, another designated judge maycontinue the hearing if the record of the evidence received by the first judge is available for review; orbegin a new hearing if the record is not available.DecisionFast decisionThe 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.Order forwarded to courtA 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.Refusal of order forwarded to courtA 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 NoticeTransfer of Emergency Protection Order and CautionCopies to peace officerAfter 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.Copy by dictationThe 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.Effect of copiesA copy that is provided in accordance with this section has the same effect as the original.Cautioning of Respondent and Specified PersonsContentThe 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:the name of the respondent and of every person specified in the order;the name of the designated judge who made the order and the place where it was made;a statement that the order was made under subsection 16(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act;the date of the order;a statement that the order will remain in force until the day set out in the order;a statement of the possible consequences of failing to comply with the order;a statement that the respondent and any person specified in the order may, within 21 days after receiving notice of the order, apply tochange the order or any of its provisions,shorten or extend the period for which the order or any of its provisions is to remain in force, orrevoke the order;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; anda 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 CautionServiceWhen 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.Methods of serviceThe peace officer may serve the respondent or specified personin person;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; orby 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.Follow-upHowever, 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 ServiceSubstituted service orderFor 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 andreasonable efforts have been made to serve the respondent or specified person; orthe respondent or specified person is evading service.Method of substituted serviceFor the purposes of this section, substituted service may be made by giving copies of the emergency protection order and caution toa 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;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;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; oran 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.Application by peace officerAn 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 adultFor 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 ApplicantNotice of serviceFor 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.Service in personWhen 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.Service using telecommunicationWhen 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.Duty of person acting for applicantWhen 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.Duty of person acting for applicantWhen 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 RefusalNotice of refusalA 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.Duty of person acting for applicantWhen 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 ForceRegistrationThese Regulations come into force on the day on which they are registered.