In Manitoba, there are legal measures under The Domestic Violence and Stalking Act to help protect you from domestic violence or stalking.
I need immediate protection. What do I do?
If you are in urgent need of protection for yourself and/or your children, you may apply for a Protection Order at a designated court location. A Protection Order is one tool that can be used as part of a safety plan.
A Protection Order is a legal document, and once it is issued, if the respondent is not following the conditions, they can be arrested by the police.
How do I apply for a Protection Order?
A Protection Order can be obtained quickly and without cost to the applicant. It is made without notice to the alleged abuser or stalker (the respondent).
Applications can be made in person. Applications can also be made by telephone with the help of a police officer, a lawyer or a person who has been specially trained and has been designated by the Minister of Justice to assist with Protection Order applications (known as Protection Order designates or PODs).
An adult can apply for a Protection Order on behalf of a child and a court-appointed committee or substitute decision maker can apply on behalf of someone who is not mentally competent, if the court has granted this authority. Anyone applying will have to provide evidence under oath about the stalking or domestic violence.
Protection Orders may include any of the following provisions necessary for the applicant’s protection:
- prohibit the respondent from coming to the applicant’s home or workplace or that of other specified persons
- prohibit the respondent from following the applicant or others
- prohibit the respondent from contacting or communicating with the applicant or others, directly or indirectly
- give the applicant or respondent temporary possession of necessary personal effects
- provide peace officer assistance to ensure the orderly removal of personal effects
- provide peace officer assistance to remove the respondent from a residence
- require the respondent to turn over weapons and authorize the police to search for and seize weapons
- since 2016, if a Protection Order is granted and the court determines that the respondent is in possession of a firearm, the order must include a provision requiring the respondent to turn over any firearm that they possess and to authorize the police to search for and seize such firearms
What happens after a Protection Order has been made?
After a Protection Order is made, the respondent will be notified. The respondent will then have 20 days to ask the Court of Queen’s Bench to set it aside and will have the opportunity to present evidence.
Protection Orders that prohibit contact, communication or attending any place where the other person happens to be, may also contain exceptions that allow the respondent to go to court or to attend at mediation or for the purposes of a court ordered assessment, when the other person is present. The Domestic Violence and Stalking Act specifies some basic protections that must be included when this type of exception is made, such as staying a certain distance away from the other person.
What is a Prevention Order?
Prevention Orders, made by judges of the Court of Queen’s Bench, may include any of the measures outlined above. The court can order additional measures to protect the applicant and deal with the domestic violence or stalking, including:
- allowing the applicant sole occupation of the family residence
- giving temporary possession of specified personal property, such as household goods, furniture or vehicles
- seizing items used by the respondent to further the domestic violence or stalking, such as cameras, video cameras, computers and other recording equipment
- recommending the respondent obtain counselling or ordering him or her to do so
- prohibiting the respondent from damaging or dealing with property in which the victim has an interest;
- ordering the respondent to pay compensation to the applicant for any monetary loss caused by the violence or stalking, such as expenses for counselling, security measures, moving or lost income
If the respondent uses a vehicle to further the stalking or domestic violence, a Court of Queen’s Bench judge may suspend the respondent’s driver’s licence and prohibit the respondent from operating a motor vehicle.
The law also allows stalking victims to sue stalkers for damages they suffer.
What are the other types of Protection Orders (‘Restraining Order’)?
The Family Maintenance Act includes a provision (section 10(1)(j)) that allows a judge of the Provincial Court or the Court of Queen’s Bench to make an order prohibiting or restricting contact and communication between spouses, common-law partners and parties who have cohabited in a conjugal relationship.
The Child Sexual Exploitation and Human Trafficking Act came into effect on April 30, 2012. This Act provides that Protection Orders can be granted in relation to child victims of sexual exploitation, or adult and child victims of human trafficking. In the case of children, a Protection Order can be requested by a parent, a child‘s legal guardian or an appropriate child welfare agency.
Such Protection Orders can prohibit the respondent against whom the order is made from having contact with a particular person, following them or attending at the subject‘s residence, school or workplace. The Protection Order will normally be granted for three years, but could be longer or renewed, if necessary.
A Protection Order can be granted upon application to a judicial justice of the peace of the Provincial Court of Manitoba. The application process for a Protection Order is similar to the procedure found in The Domestic Violence and Stalking Act.
What is the difference between a non-molestation order and a Protection Order?
The Domestic Violence and Stalking Act came into effect in 1999. Prior to that, under The Family Maintenance Act, a judge or magistrate could make an order forbidding the abuser to molest, annoy or harass the other spouse or partner (a non-molestation order). A Court of Queen’s Bench judge could make an order forbidding the abuser to enter the home or place of work of the other (a prohibition order). These orders continue to be in effect until the court cancels the order or, in the case of a non-molestation order that had been granted by a magistrate or a Provincial Court judge, the person protected under that order gets a Protection Order or prevention order under The Domestic Violence and Stalking Act. In such a case, the new Protection Order or prevention order would take the place of the old non-molestation order.
What happens if an order of protection is not followed?
A person disobeying a civil order of protection can be charged with breaching a court order and, if convicted, may be fined, bound by a probation order or imprisoned.
Do orders of protection expire?
Certain civil orders of protection do not expire after a set period of time, unless they specifically say so. Orders without expiry dates are in effect until changed or ended by a court order, even if the parties reconcile.
Protection Orders under The Domestic Violence and Stalking Act, granted after October 31, 2005, will usually expire after three years.
Who can apply for orders of protection?
A person who has been subjected to domestic violence by a person with whom they have a family or domestic relationship with can apply for a protection order. These relationships include the following:
- people who are living together or have lived together in a spousal, conjugal or intimate relationship,
- family members regardless of whether they have lived together or not,
- people who have been in a dating relationship, or
- persons who are the biological or adoptive parents of a child, regardless of their marital status or whether they have ever lived together.
In addition, a person who has been subjected to stalking can apply for relief, regardless of the nature of his or her relationship to or with the stalker (if any).
Does Manitoba recognize civil orders of protection made in other provinces and territories?
Under a law called The Enforcement of Canadian Judgments Act, Manitoba recognizes civil Protection Orders made in other Canadian provinces and territories. Police in Manitoba will enforce such orders as if they were made here, without the need to register the order with the court.
What protections are available to First Nations people living on reserve?
Family Homes on Reserves and Matrimonial Interests or Rights Act is a federal law that addresses, among other things, the rights of married spouses and common-law partners to use and occupy the family home situated on a reserve, including the right to apply to the Court of Queen’s Bench for an order of exclusive occupancy of the family home upon a separation or breakdown of the relationship.
In cases involving urgent circumstances, including the existence of family violence, a spouse or common-law partner living on reserve can apply to the court for an interim order of exclusive occupancy of the family home on an expedited basis, without notice to the other party.
If an interim, without notice of exclusive occupancy is granted by a judge, it will usually be for a short period of time, to allow the issue to be decided on a regular interim or final basis once the other party has been given notice of the application.