NLR 52/06 - Provincial Court Family Violence Protection Rules under the Provincial Court Act, 1991

NEWFOUNDLAND AND LABRADOR REGULATION 52/06 Provincial Court Family Violence Protection Rules under the Provincial Court Act, 1991 (O.C. 2006-261) Amended: 1/25 Provincial Court Family Violence Protection Rules under the Provincial Court Act, 1991 (O.C. 2006-261) (Filed June 30, 2006 ) Under the authority of section 29.1 of the Provincial Court Act, 1991 , the Lieutenant-Governor in Council makes the following rules. Dated at St. John’s , June 30, 2006 . Robert C. Thompson Clerk of the Executive Council RULES Analysis 1. Short title 2. Interpretation 3. Oath or affirmation 4. Who may make application 5. How application is made 6. Filing of application 7. Application without notice 8. Form and substance of an application 9. Preliminary matters 10. Hearing of application 11. When decision to be made 12. When order is to be denied 13. When order is to be made 14. Filing of order 15. Form and content of order 16. Delivery of order 17. Service of order 18. Substituted service 19. Dispensing with service 20. Application to set aside order 21. Application to vary or terminate order 22. Application procedures generally 23. Reply 24. Application abandoned or withdrawn 25. Service of application, reply and notice 26. When service must be made 27. Hearing of an application to set aside, vary or terminate 28. Service of order to set aside, vary or terminate 29. Service generally 30. Commencement Short title 1. These rules may be cited as the Provincial Court Family Violence Protection Rules . 52/06 s1 Back to Top Interpretation 2. (1) In these rules, unless the context otherwise requires, (a) "Act" means the Family Violence Protection Act ; (b) "applicant" means a person described in paragraph 4(a) who applies for or has obtained an emergency protection order; (b.1) "care relationship" means a relationship between 2 persons, whether or not they have ever resided together, where one person is or was dependent on the other person for assistance in the person's daily life activities because of a disability, illness or impairment; (c) "child" means a child as defined under paragraph 2(b) of the Act; (d) "court" means the Provincial Court of Newfoundland and Labrador or a judge of the Provincial Court whether sitting in court or in chambers; (e) "court centre" means an office of the court and includes the following locations as amended from time to time: (i) St. John's , (ii) Placentia , (iii) Harbour Grace, (iv) Clarenville, (v) Grand Bank, (vi) Gander , (vii) Grand Falls-Windsor, (viii) Corner Brook , (ix) Stephenville, (x) Wabush , (xi) Happy Valley-Goose Bay, (f) "designated person" means a person designated by regulations made under paragraph 20(b) of the Act; (g) "emergency protection order" means an emergency protection order granted under section 5 of the Act in accordance with these rules; (h) "family violence" means an act or omission described in subsection 3(1) of the Act; (i) "hearing" means the hearing of an application; (j) "judge" means a Provincial Court judge appointed under the Provincial Court Act, 1991 and includes the chief judge; (k) "lawyer" means a member in good standing of the Law Society of Newfoundland and Labrador who is entitled to appear and represent a party in the court under the Law Society Act ; (l) "on-call judge" means a judge of the court who is designated by the chief judge to perform judicial duties outside the regular working hours of the court for a particular period of time; (m) "order" means an order, decision or judgment of the court; (n) "police officer" means a police officer as defined under paragraph 2(i) of the Act; and (o) "respondent" means a person against whom an emergency protection order is sought or made. (2) For the purposes of these rules, (a) a reference to "in the prescribed form" means a form as prescribed by practice memorandum of the court; and (b) a reference to "in writing" includes a form of telecommunication that produces a writing. 52/06 s2 ; 1/25 s1 Back to Top Oath or affirmation 3. (1) Where these rules require that a person provide a sworn statement or give evidence under oath, the person making the statement or providing the evidence may satisfy the requirement by making a solemn affirmation in accordance with section 3 of the Oaths Act and a statement made or evidence given under solemn affirmation shall have the same effect as if made or given under oath. (2) For purposes of these rules, where an application is made by a police officer by facsimile telecommunication, an oath or solemn affirmation may be administered by telephone. 52/06 s3 Back to Top Who may make application 4. An application for an emergency protection order may be made (a) by an applicant who ( i ) resides wi th or has resided with the respondent in a conjugal relationship, whether within or outside marriage, (ii) is, tog ether with the respondent, a parent of one or more children, regardless of the applicant's and the respondent's marital status or whether the applicant and respondent have resided together, (iii) is related by blood, marriage or adoption to the respondent, regardless of whether the applicant resides with or has resided with the respondent, or (iv) is or was in a care relationship with the respondent; or (b) on behalf of an applicant described in paragraph (a), by ( i ) a designated person, or (ii) a police officer or lawyer, with the consent of the applicant. 52/06 s4 ; 1/25 s2 Back to Top How application is made 5. (1) An applicant referred to in paragraph 4(a) may only make an application for an emergency protection order in person and during the regular working hours of the court, from Monday to Friday, excluding statutory holidays. (2) A person referred to in paragraph 4(b) may make an application for an emergency protection order on behalf of an applicant in person or by facsimile telecommunication during the regular working hours of the court, from Monday to Friday, excluding statutory holidays. (3) An application for an emergency protection order may be made (a) on Saturday or Sunday; (b) on a statutory holiday; or (c) at any time other than during the regular working hours of the court, but only by a police officer and only by facsimile telecommunication to the on-call judge and the police officer shall first contact the on-call judge by telephone to confirm the on-call judge's availability. (4) Where an applicant is not present when an application is made under subsection (2) or (3), the person making the application shall provide the applicant with a copy of the application and supporting documentation as soon as practicable after the application is filed. 52/06 s5 ; 1/25 s3 Back to Top Filing of application 6. (1) An application for an emergency protection order that is made under subsection 5(1) or 5(2) may be made to and heard by a judge at the court centre (a) closest to where the applicant normally resides; or (b) closest to where the applicant is at the time the application is made. (2) Where than application for an emergency protection order referred to in subsection (1) is made in person by an applicant or a lawyer, police officer or designated person on behalf of an applicant to a court centre other than the court centre closest to where the applicant normally resides, the member of court staff who receives the application shall cause a copy of the application and supporting documentation to be forwarded to the clerk of the court in the court centre closest to where the applicant normally resides as soon as practicable. (3) Where an application is made by facsimile telecommunication under section 5(2) or 5(3) (a) the person making the application shall cause the original signed application and supporting documentation to be forwarded to the clerk of the court in the court centre closest to where the applicant normally resides as soon as practicable; and (b) the original signed application shall be clearly marked on its face "Sent by telephone facsimile transmission" giving the date and the time of the transmission. (4) An application for an emergency protection order that is made by facsimile telecommunication to an on-call judge under subsection 5(3) shall be considered to be filed in the court centre closest to where the applicant normally resides when the on-call judge receives the facsimile telecommunication. (5) The filed facsimile telecommunication of an application shall have the same effect as the original of the application. 52/06 s6 Back to Top Application without notice 7. An application for an emergency protection order may be made without notice to another person. 52/06 s7 Back to Top Form and substance of an application 8. (1) An application for an emergency protection order shall be in writing in the prescribed form and shall contain the following information: (a) the name and address of the applicant and for this purpose, the address may be an address designated by the applicant for purposes of service that is other than the applicant’s residential address; (b) the name and last known address of the respondent; (c) the name and date of birth of any child who ordinarily or periodically resides with the applicant; (d) a statement that the applicant requests an emergency protection order under section 5 of the Act; (e) where the application is made on behalf of the applicant by a lawyer or police officer, the applicant's consent to the application, and (f) where the application is made on behalf of the applicant by a lawyer, police officer or designated person, the name, profession and business or employment address of the person making the application on behalf of the applicant and any other information necessary to identify or contact the person making the application. (2) An application for an emergency protection order shall be accompanied by a sworn statement in writing that establishes (a) the nature of the applicant’s relationship to the respondent; (b) the particulars of the acts or omissions constituting family violence, including any prior acts or omissions constituting family violence; (c) a summary of all proceedings and orders between the applicant and respondent, including where appropriate, a summary of all proceedings and orders between the applicant and respondent affecting or in relation to a child or children of the applicant and the respondent; (d) whether the applicant has made any previous application for an emergency protection order and the date when the application was made; (e) the applicant's belief that family violence is likely to continue or resume and the basis for that belief; and (f) the applicant's fear for the applicant’s safety and, where appropriate, the safety of a child and the basis for that belief. (3) In addition to the matters referred to in subsections (1) and (2), where an application for an emergency protection order is made by facsimile telecommunication, the application shall include a cover page in the prescribed form setting out (a) the sender’s name, address and telephone facsimile number; (b) the date and time of transmission; (c) the names of the applicant and respondent in the proceeding and the file number, where one is known; (d) the total number of pages transmitted, including the cover page; (e) the telephone facsimile number from which the document is transmitted; and (f) the name and telephone number of a person to contact in the event of transmission problems. 52/06 s8 ; 1/15 s4 Back to Top Preliminary matters 9. At the hearing of an application for an emergency protection order a judge, before considering the allegations of the applicant and the evidence in support of the allegations, shall be satisfied (a) that the applicant is a person who may apply for an emergency protection order under paragraph 4(a); (b) where the application is made on behalf of an applicant, that the application has been made ( i ) by a designated person, or (ii) by a police officer or lawyer, with the consent of the applicant; and (c) that the application is made in writing in the prescribed form and in accordance with the requirements of these rules. 52/06 s9 ; 1/25 s5 Back to Top Hearing of application 10. (1) Where a judge is satisfied that the requirements of section 9 have been met, the judge shall hear and consider the documentation submitted by the applicant and may decide the application for an emergency protection order without notice to another person. (2) Where the judge hearing the application for an emergency protection order considers it necessary, the judge may, on terms the judge considers appropriate, (a) receive evidence in the form of an amendment or supplement to the sworn statement referred to in subsection 8(2); (b) order that notice of the application be served upon a person in the manner directed by the judge; (c) where an application has been made by facsimile telecommunication, adjourn the hearing to a time and place where the judge may receive oral evidence; and (d) conduct the hearing in any manner that the judge considers appropriate and that is not inconsistent with the Act or these rules. (3) When hearing an application for an emergency protection order, a judge shall ensure that (a) all evidence in support of the application is given under oath; and (b) a record is made of all evidence received or adduced in support of the application and for this purpose, the record may be created in writing or by tape recording. (4) Where a judge begins to hear an application for an emergency protection order and is unable to continue the hearing for any reason, another judge may (a) continue hearing the application where the record of evidence before the previous judge created under paragraph (3)(b) is available for review by the judge; or (b) continue hearing the application as if no evidence had been taken where the record of evidence under paragraph (3)(b) is not available for review by the judge. 52/06 s10 ; 1/25 s6 Back to Top When decision to be made 11. (1) An application for an emergency protection order shall be heard and decided in a summary way and without delay and in any event within 24 hours of the filing of the application. (2) Notwithstanding subsection (1), where as a result of factors beyond the control of the judge hearing the application, it is impossible to decide the application within 24 hours of its filing, an order granting or denying the application shall be made as soon as practicable and in such a case, the order shall be as valid as if it had been made in accordance with subsection (1). 52/06 s11 Back to Top When order is to be denied 12. Where a judge hearing an application for an emergency protection order is not satisfied, based upon the application and supporting documentation and taking into account the factors referred to in subsection 5(2) of the Act that (a) family violence has occurred; or (b) by reason of seriousness or urgency an emergency protection order should be made without delay to ensure the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage, the application shall be denied. 52/06 s12 Back to Top When order is to be made 13. Where a judge hearing an application is satisfied on the balance of probabilities, based on the application and supporting documentation and taking into account the factors referred to in subsection 5(2) of the Act, that (a) family violence has occurred; and (b) by reason of seriousness or urgency the emergency protection order should be made without delay to ensure the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage an emergency protection order shall be made. 52/06 s13 Back to Top Filing of order 14. Upon deciding an application for an emergency protection order, the judge shall cause the judge’s order granting or denying the application and all associated records, including the judge’s notes, to be filed (a) in the court centre in which the application for the emergency protection order was filed; or (b) where the application was made to a court centre other than one closest to where the applicant normally resides, the court centre closest to where the applicant normally resides. 52/06 s14 ; 1/25 s7 Back to Top Form and content of order 15. (1) An emergency protection order shall be in the prescribed form and shall include one or more of the provisions set out in section 6 of the Act. (2) In addition to the provisions referred to in subsection (1), an emergency protection order shall (a) advise the respondent of the respondent’s right to apply to the court under subsection 10(1) of the Act to set aside the order and the time limit for doing so; (b) contain information respecting the right of each of the applicant and the respondent to apply to the court under subsection 12(1) of the Act to vary or terminate the order; and (c) contain general information respecting the penalties in the event of non-compliance with the order. (3) An order based on a facsimile telecommunication application has the same effect as an order based on an application made in person. 52/06 s15 ; 1/25 s8 Back to Top Delivery of order 16. (1) Where an emergency protection order is made, for the purpose of service upon the respondent in accordance with paragraph 17(b), the judge making the emergency protection order shall provide a copy of the order together with a copy of the application and the record of evidence to a police officer either by personal delivery or by facsimile telecommunication to the police detachment closest to the last known address of the respondent. (2) A copy of an order transmitted by facsimile telecommunication under subsection (1) has the same effect as the original of the order made by the judge. 52/06 s16 Back to Top Service of order 17. Upon receipt of the copy of the order and documentation transmitted under subsection 16(1), the police officer shall (a) provide one copy of the emergency protection order to the applicant; and (b) personally serve one copy of the order, the application and the record of evidence forthwith on the respondent named in the emergency protection order and provide proof of service satisfactory to the court. 52/06 s17 Back to Top Substituted service 18. (1) Where a judge is satisfied that a police officer, after making every reasonable effort, has been unable to effect personal service on the respondent in accordance with paragraph 17(b) within 48 hours after receiving a copy of the emergency protection order, the judge may, on application, make an order for substituted service in any manner the court may direct. (2) An application for substituted service under subsection (1) may be made in person or by facsimile telecommunication and shall (a) be in the prescribed form; (b) be supported by evidence setting out why personal service is impracticable; (c) propose a method of service that is likely to bring notice of the order to the respondent; and (d) where made by facsimile telecommunication, include a cover page in the prescribed form. (3) Upon making an order for substituted service, the judge shall (a) cause the order and the application to be filed in the court centre where the emergency protection order is filed; and (b) transmit a copy of the order to the police officer who made the application either by personal delivery or by facsimile telecommunication. (4) A copy of an order for substituted service transmitted by facsimile telecommunication under subsection (3) has the same effect as the original of the order made by the judge. (5) A person who provides a copy of the emergency protection order and associated documentation to a respondent by substituted service shall provide proof of service satisfactory to the court in the prescribed form. (6) Service of an emergency protection order in accordance with the order for substituted service shall be considered to be personal service on the respondent. 52/06 s18 Back to Top Dispensing with service 19. (1) Where a judge is satisfied, on the application of a police officer under subsection 8(3) of the Act, that service of the emergency protection order cannot be effected by personal service under paragraph 17(b) or by substituted service under section 18, the judge may make an order dispensing with service. (2) An application referred to in subsection (1) may be made in person or by facsimile telecommunication and shall be (a) in the prescribed form; (b) supported by evidence setting out the police officer's attempts at personal service and substituted service; and (c) where made by facsimile telecommunication, include a cover page in the prescribed form. (3) Upon making an order dispensing with service, the judge (a) shall cause the order and the application to be filed in the court centre where the emergency protection order is filed; and (b) transmit a copy of the order to the police officer who made the application either by personal delivery or by facsimile telecommunication. (4) A copy of an order dispensing with service that is transmitted by facsimile telecommunication under subsection (3) has the same effect as the original of the order made by the judge. 52/06 s19 Back to Top Application to set aside order 20. (1) A respondent named in an emergency protection order may apply under section 10 of the Act for an order to set aside an emergency protection order. (2) An application referred to in subsection (1) shall be made by the respondent not more than 10 days after the respondent is served with or has received notice of the emergency protection order. 52/06 s20 ; 1/25 s9 Back to Top Application to vary or terminate order 21. (1) A respondent or an applicant named in an emergency protection order may apply under section 12 of the Act for an order to vary or terminate the emergency protection order or a provision of the emergency protection order. (2) An application referred to in subsection (1) may be made at any time prior to the expiration of the emergency protection order. 52/06 s21 Back to Top Application procedures generally 22. (1) An application to set aside an emergency protection order or to vary or terminate an emergency protection order or a provision of an emergency protection order may be made from Monday to Friday, excluding statutory holidays, during the regular working hours of the court. (2) An application referred to in subsection (1) may be made in person or by facsimile telecommunication at the court centre where the emergency protection order is filed. (3) An application referred to in subsection (1) shall (a) be in the prescribed form; (b) set out in sufficient detail the basis of the claim and the relief requested; and (c) be supported by a sworn statement. (4) Where an application referred to in subsection (1) is made by facsimile telecommunication, (a) the application shall include a cover page in the prescribed form; (b) the application shall be considered to be filed when the facsimile transmission is received by the court and the filed facsimile shall be considered to have the same effect as the original; (c) the person making the application shall cause the original signed application and supporting documents to be forwarded to the clerk of the court in the court centre where the application is filed as soon as practicable; and (d) the original signed application shall be clearly marked on its face "Sent by telephone facsimile transmission", giving the date and time of the transmission. 52/06 s22 Back to Top Reply 23. (1) Where the other party to an application referred to in subsection 22(1) opposes the application, that party may file a reply at least 2 days before the date of the hearing of the application. (2) A reply may be filed in person or by facsimile telecommunication and where filed by facsimile telecommunication, the requirements of subsection 22(4) shall apply with the necessary changes. (3) A reply referred to in subsection (1) shall be (a) in the prescribed form; and (b) supported by a sworn statement. 52/06 s23 Back to Top Application abandoned or withdrawn 24. (1) A person making an application referred to in subsection 22(1) may abandon the application by filing a notice of abandonment in the prescribed form and serving a copy of the notice upon the other party to the application in accordance with section 25. (2) A notice of abandonment may be filed in person or by facsimile telecommunication and where filed by facsimile telecommunication, the requirements of subsection 22(4) shall apply with the necessary changes. (3) A person making an application referred to in subsection 22(1) who fails to appear at the hearing of the application shall be considered to have abandoned the application, unless the court orders otherwise. 52/06 s24 Back to Top Service of application, reply and notice 25. (1) Service of an application referred to in subsection 22(1), a reply under subsection 23(1) or a notice of abandonment under subsection 24(1) shall be by personal service by one of the following methods: (a) personal service on the person at the address designated for purposes of service set out in the application for the emergency protection order; or (b) service of a copy of the application, reply or notice on an adult person who (i) resides with the person to be served, (ii) is a family member of the person to be served, or (iii) is able to bring the application or reply to the attention of the person to be served, together with a notice stating that the copy of the application or reply is to be provided to the person to be served. (2) Where the emergency protection order which is the subject of an application under subsection 22(1), a reply under subsection 23(1) or a notice of abandonment under subsection 24(1) contains a provision (a) restraining the respondent from directly or indirectly communicating with the applicant; or (b) restraining the respondent from attending at or near or entering any place that is attended regularly by the applicant, including a residence, property, business, school or place of employment, the person making the application, reply or notice shall cause the documents to be served to be forwarded to a police officer who shall undertake service by one of the methods described in subsection (1). 52/06 s25 Back to Top When service must be made 26. (1) An application referred to in subsection 22(1) shall be served on the other party to the proceeding at least 5 days before the date set down for the hearing of the application. (2) A reply under subsection 23(1) shall be served on the other party to the proceeding at least one day before the date set down for the hearing of the application. 52/06 s6 Back to Top Hearing of an application to set aside, vary or terminate 27. (1) An application referred to in subsection 22(1) shall be heard by the court in the court centre in which the emergency protection order is filed, unless the court orders otherwise. (2) Evidence on a hearing of an application referred to in subsection 22(1) may be given (a) by a statement under oath or solemn affirmation; (b) by a statement of facts agreed upon in writing by the parties; or (c) with the leave of the court, by a witness in person, and in addition to the evidence that may be adduced by either party, the court may consider the evidence that was before the judge that issued the emergency protection order in the form in which it was recorded. (3) Where a party fails to attend the hearing of an application after being served with notice of the application, the court may proceed in that party’s absence. 52/06 s27 Back to Top Service of order to set aside, vary or terminate 28. (1) The court may set aside an emergency protection order or vary or terminate an emergency protection order or a provision of an emergency protection order in accordance with the Act on such terms as it thinks just. (2) Where an emergency protection order is set aside under section 10 of the Act or where an emergency protection order or a provision of an emergency protection order is varied or terminated under section 12 of the Act, the order setting aside the emergency protection order or varying or terminating the emergency protection order or a provision of an emergency protection order shall be filed in the court centre where the original emergency protection order is filed. (3) Upon making an order to set aside an emergency protection order or to vary or terminate an emergency protection order or a provision of an emergency protection order, the judge shall provide a copy of the order to a police officer by personal delivery or by facsimile telecommunication to the police detachment in the court centre in which the application to set aside or vary or terminate was made and the police officer shall forthwith serve the order on the applicant and respondent in the manner ordered by the court. (4) A police officer may apply for an order for substituted service or an order dispensing with service of an order to set aside, vary or terminate an emergency protection order and the requirements of section 18 or 19 , as the case may be, shall apply to the application with the necessary changes. (5) A copy of an order referred to in subsection (3), an order for substituted service or an order dispensing with service that is transmitted by facsimile telecommunication shall have the same effect as the original of the order made by the judge. 52/06 s28 Back to Top Service generally 29. For the purposes of these regulations, service of a document may be proved by (a) an affidavit stating by whom the document was served, the day of the week, the time of day and the date on which it was served, where it was served and how it was served; or (b) by the sworn or affirmed oral evidence of the person who served the document. 52/06 s29 Back to Top Commencement 30. These regulations shall come into force on July 1, 2006 . 52/06 s30