Canada Gazette, Part I, Volume 148, Number 15: Emergency Protection Orders Regulations

April 12, 2014

Statutory authority

Family Homes on Reserves and Matrimonial Interests or Rights Act

Sponsoring department

Department of Aboriginal Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Background

In the Canadian legal system, matrimonial property is generally defined as property owned by one or both spouses and used for a family purpose. Matrimonial real property includes the land and anything permanently attached to the land, such as the family home.

In 1986, the Supreme Court of Canada held that when a marriage breaks down on reserve, courts cannot apply provincial or territorial family laws to alter individual land interests recognized under the Indian Act because reserve lands fall under federal jurisdiction.

Further, the Indian Act, which governs the administration of reserve lands and assets, is silent on the issue. As a result, many of the legal rights and remedies relating to matrimonial real property that are available to those living off reserve were not available on reserve.

Before the Family Homes on Reserve and Matrimonial Interests or Rights Act passed, the only legal mechanisms available to address on-reserve matrimonial real property were negotiated self-government agreements involving the management of reserve lands, and First Nation laws made pursuant to the First Nations Land Management Act, where the requirement to develop a matrimonial real property law is ancillary to the development of a land code.

Of Canada's approximately 600 First Nations with reserve land, only a few have matrimonial real property laws in place through these mechanisms, and most on-reserve residents remained, before the legislation passed, without matrimonial real property rights and remedies.

Under the legislation, and as of its coming into force on December 16, 2013, First Nations will have the power to enact their own laws regarding the matrimonial interests or rights on reserve — what is commonly referred to off reserve as matrimonial real property. The legislation also provides for rights and protections regarding the matrimonial interests or rights that will be applicable in the absence of a First Nation law. However, these provisional federal rules will only come into force on December 16, 2014, and will apply to First Nations that have not, on that date, enacted their own matrimonial real property laws.

The provisional federal rules will apply only in the following circumstances to First Nations under the First Nations Land Management Act (FNLMA): (i) to FNLMA First Nations who were placed on the schedule of that Act after June 19, 2013, but do not bring into force a land code or matrimonial real property law under that legislation (or under the Family Homes on Reserve and Matrimonial Interests or Rights Act) before December 16, 2014, or (ii) to FNLMA First Nations who were placed on the schedule of that Act before June 19, 2013, who have not brought into force a land code or matrimonial real property law under that legislation (or under the Family Homes on Reserve and Matrimonial Interests or Rights Act) by June 19, 2016. The provisional federal rules will only apply to any self-governing First Nation with reserve lands if that self-governing First Nation has entered into a self-government agreement with Canada which includes powers of land management, but has not yet enacted legislation with respect to matrimonial real property under the self-government agreement (or under the Family Homes on Reserve and Matrimonial Interests or Rights Act), if the parties to the self-government agreement recommend that the Minister of Indian Affairs and Northern Development declare that the provisional federal rules apply.

The provisional federal rules provide rights and protections similar to those provided off reserve by provincial laws, for instance, emergency protection orders for temporary exclusive occupation of the family home in instances of family violence. While the federal rules are provisional, they account for the likelihood that some First Nations may not develop their own laws for some time, or at all.

At any time after the Family Homes on Reserves and Matrimonial Interests or Rights Act is in force, First Nations may elect to develop their own community-specific matrimonial real property laws. First Nations will be required at their own costs to consult with their members on the development or amendment of their laws and conduct a community approval process. Once a First Nation has approved its own law, the federal provisional rules will no longer apply to that First Nation.

Issues

Individuals who live on reserve cannot currently apply for emergency protection orders nor can a court or enforcement agency issue orders. Given this situation, spouses who are victims of domestic violence cannot apply to courts for orders against violent partners to receive temporary exclusive occupation of the family home. This puts family abuse victims at higher risk for continued abuse or forces such victims to seek alternative accommodations.

The Family Homes on Reserves and Matrimonial Interests or Rights Act provides for the issuance of emergency protection orders on reserve to allow for exclusive temporary occupation of the family home in the case of family violence. It does not, however, provide the rules of practice and procedure that law enforcement agencies must follow in order to issue the orders.

The applications for emergency protection orders on reserves will be heard within the court systems of the relevant provinces and territories. British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon and the Northwest Territories all have existing domestic violence legislation. This type of legislation typically allows spouses who are victims of domestic violence to apply to court for restraining or protection orders against violent spouses and to obtain temporary exclusive possession of the family home. The Family Homes on Reserves and Matrimonial Interests or Rights Act allows for the related existing processes in the province or territory to be adapted to the federal regime for use on reserve.

Ontario, Quebec and New Brunswick do not, however, have legislation of a similar nature to that being proposed and have no established processes for issuing and implementing emergency protection orders. The proposed federal regulations are needed in these provinces to establish such a process and allow the Family Homes on Reserves and Matrimonial Interests or Rights Act to be effectively implemented on reserves across the country.

Objectives

The objective of the proposed Emergency Protection Orders Regulations is to provide rules of practice and procedure to law enforcement agencies and courts to make applications and execute emergency protection orders on reserve across Canada pursuant to the Family Homes on Reserve and Matrimonial Interests or Rights Act. The proposed Regulations will also provide a clear process that is consistent with existing provincial practices and ensures emergency protection orders are issued in a fair and consistent manner.

By fulfilling these objectives, the proposed Regulations will help fulfil the overarching goals of the legislation, which are to provide families on reserve with key rights and protections that reduce harm associated with domestic violence and family breakdown.

Description

The proposed Emergency Protection Orders Regulations were developed pursuant to the Family Homes on Reserves and Matrimonial Interests or Rights Act. The Act sets out rules regarding matrimonial interests on reserves in the event of a breakdown of the marriage or common-law relationship.

The Family Homes on Reserves and Matrimonial Interests or Rights Act ensures that people living on reserves have similar protections and rights regarding matrimonial real property to those of other Canadians. With respect to disputes that lead to family violence, until now there has been an absence of applicable laws from federal or provincial sources to address family violence situations in the majority of First Nations reserve communities. Further, there is nothing in place to provide fast and direct responses to protect the victims of family violence on reserve. While the Family Homes on Reserves and Matrimonial Interests or Rights Act allows for the adaptation and use of any existing provincial rules of practice and procedure, federal regulations are needed to establish such rules to be applied in the absence of any adapted provincial rules when protection orders are considered or granted under the federal act. The proposed Emergency Protection Orders Regulations are necessary in order to permit abuse victims living on reserve to exercise similar rights and benefit from protections available to Canadians living off reserve.

The proposed federal Emergency Protection Orders Regulations mirror existing provincial and territorial laws or rules of practice or procedures that permit an individual to apply for an emergency protection order in the case of family violence. Among other things, an emergency protection order may grant temporary exclusive occupation of the family home to one spouse or common-law partner along with their children, and order a peace officer to remove the other person, and/or prohibit that person from returning to the home unescorted during the duration of the order.

Regulatory and non-regulatory options considered

Two options were available: (1) to maintain the regulatory status quo (or baseline); and (2) to implement the proposed Emergency Protection Orders Regulations. Maintaining the status quo meant relying on existing provincial processes being adapted or on First Nations adopting their own laws that include procedures and processes for issuing emergency protection orders. When this option was assessed, it was clear that this would leave individuals on some reserves with no clear process in place for issuing orders. The status quo was considered unacceptable as Canadians living on reserve do not have the same access to emergency protection orders as individuals living off reserve, and the regulatory status quo is not aligned with most provincial equivalents. Additionally, it is believed that abuse and violent acts can be reduced and avoided by the introduction of these Regulations.

Implementing the proposed Emergency Protection Orders Regulations was selected as the best option since it will ensure universal coverage for provinces and individuals on reserves of rules of practice and procedures for issuing emergency protection orders.

Once the provisional federal rules come into force on December 16, 2014, and justices of the peace or judges have been designated for the purposes of the Family Homes on Reserves and Matrimonial Interests or Rights Act, the Emergency Protection Orders Regulations will provide for the rules of practice and procedure where the relevant provincial or territorial authority has not adapted or made its own rules of practice and procedure under the Act. In such situations, these Regulations are necessary for the implementation of the emergency protection order provisions of the Family Homes on Reserves and Matrimonial Interests or Rights Act.

The baseline scenario attempts to establish the number of cases of abuse per year that take place on reserves across Canada. Some information for this baseline is taken from off-reserve sources. However, adjustments are made to reflect the on-reserve reality.

Benefits and costs

Three techniques were employed to apply valuations to the costs and benefits associated with the proposed Emergency Protection Orders Regulations. The first technique was simply to quantify the actual costs that would be incurred or the benefits that would be gained for a particular end point. For example, the costs associated with training enforcement officers and with communications have been set and these activities are certain. However, in situations where no monetized amounts were available, the benefits or costs were examined by employing alternative methods to arrive at a value. As an example, the estimated alternative accommodation costs to be incurred by perpetrators of violence were estimated by forecasting the probable number of protection orders to be issued (based on information from other jurisdictions) and the average costs of alternate living derived from Treasury Board Secretariat meal and incidental rates. A third technique was used to quantify the benefit of domestic well-being, which was calculated as the monetary benefit of avoiding violent crime. For this, data was obtained from a contingent valuation study through a benefits transfer that assigned a monetary cost to different forms of abuse. All amounts are shown in present value over a 10-year time frame.

To acquire the data, key experts within Aboriginal Affairs and Northern Development Canada as well as other partners in implementation were interviewed for insight, data and guidance on potential data sources. Relevant reports from Statistics Canada and published studies were also examined to find quantitative data for the baseline and regulatory scenarios. While the best reasonable efforts were made to find data to support the cost-benefit analysis, there were limitations on the data collection. As these are new regulations, there was limited existing data on the issue. In addition, it is generally more difficult to find reliable data for on-reserve situations. Thus, much of the data are from off-reserve sources but have been adjusted, where supportable data exists, to reflect the best estimate of the on-reserve realities.

The baseline scenario assumes that without the proposed Emergency Protection Orders Regulations, law enforcement officials and courts across Canada would not have clear processes and procedures for issuing emergency protection orders on reserve. Even provinces that have existing procedures for the issuance of emergency protection orders off reserve require clarity for administration on reserve because of the need for a consistent system on reserves across Canada. Therefore, in the baseline scenario, it is assumed that no emergency protection orders would be issued, and the number of cases of abuse that take place on reserve across Canada per year without emergency protection orders regulations in place was established. Some information for this baseline is taken from off-reserve sources. However, adjustments are made to reflect the on-reserve reality. Currently, due to the absence of the Emergency Protection Orders Regulations, individuals who live on reserve cannot apply for emergency protection orders, nor can a court or enforcement agency issue orders. Given this situation, spouses who are victims of domestic violence cannot apply to courts for orders against violent partners to receive temporary exclusive occupation of the family home. This puts family abuse victims at higher risk for continued abuse or forces such victims to seek alternative accommodations.

The costs and benefits were determined as follows:

Benefits

Increased well-being of family at risk

To determine the monetary benefit for the increased well-being of families resulting from the decreased risk of family violence, the number of people on reserve who could be at risk of family violence over the next decade was first determined. This number was based on available information from Statistics Canada and other Government data sources. This number was then set off against the reduced number of people who would experience violence after the Regulations are in place. It is estimated that the emergency protection orders would be 66% effective in reducing spousal violence in situations where protection orders are issued.

The difference derived from the two scenarios was then applied to the percentage of various types of assaults in Canada (namely homicide, sexual assault, major assault and common assault) to determine the number of on-reserve individuals expected to experience each of these types of assault.

These values were then multiplied by the corresponding contingent value of violent crime (or the value of statistical life in the case of homicides) to determine the monetary cost of abuse and subsequent monetary benefits of avoiding abuse through the existence of the Regulations. This benefit was estimated to have a total monetary value of $170,241,829 over 10 years. With a discount rate of 7%, this amount would be $118,143,271. These results may be considered conservative as reports indicate that Aboriginal women are eight times more likely to be murdered by their spouse than non-Aboriginal women (Canadian Women's Foundation, “The facts about violence against women,” www.canadianwomen.org/facts-about-violence).

Reduction of costs resulting from criminal offences

Separating the agents of family violence from situations where they are likely to commit acts of violence will help these individuals avoid incurring additional costs that could result from criminal offences. That said, it was difficult to determine from the data available the number of criminal offences that could be avoided due to the presence of an emergency protection order. Even when protection orders are issued, criminal charges are still laid 14% of the time, (see footnote 1) and charges may also be laid in relation to the breach of an order itself. Nonetheless, as discussed previously, the existence of protection orders serves to reduce the incidence of spousal violence (66% effectiveness).

Department of Justice data suggests that charges are laid in approximately 75% of the cases where spousal violence is reported to police. Under a regulatory scenario, the number of violent incidents (and therefore violent incidents reported to police) will decrease. Consequently, the number of criminal charges that would be laid will decrease. It is estimated that over a 10-year period the number of charges laid would be reduced by 750 (an average of 75 per year). This is calculated by subtracting the estimated number of charges laid under the non-regulatory scenario from the number of charges laid under a regulatory scenario.

Therefore, with the proposed Emergency Protection Orders Regulations in place, it is estimated that the agents of violence would avoid a number of costs associated with court. The assumptions taken into account are that travel to go to a criminal trial would cost approximately $1,000, the hotel would cost $100 per night, while meals and incidentals would cost $90.15 (Treasury Board policy on travel, deemed a reasonable estimate of what a cost might be to an individual) per day, and that a trial would last on average three days. The median salary on reserve was estimated at $14,697 per year, according to Aboriginal Affairs and Northern Development Canada's INSTAT statistics based on 2011 National Household Survey data, which means that, considering there are 260 working days per year, an average salary would be $56.53 per day. The incidental costs, foregone salary per day and hotel cost were multiplied by the average estimated number of days for a criminal trial. The total amount is then multiplied by the expected “reduced” number of cases per year (75). Therefore, with emergency protection orders in place, it is estimated that a number of court cases would be avoided, as would the associated costs that would be borne by the agent of violence. The total benefit would be $135,573.48 per year for a total of $1,355,734.84 over 10 years. With a discount rate of 7%, this amount would be $952,211.42.

Reduction of court and legal costs resulting from criminal offences

Separating agents of family violence from situations where individuals are more likely to commit acts of violence will reduce court costs and legal aid costs that could result from criminal offences. It was estimated that the number of violent incidents will decrease, which in turn will result in a reduction of criminal charges (an average of 75 fewer per year).

In 2011, it was estimated by Justice Canada that the costs of a criminal case were approximately $3,732 per case (or $3,877 in 2013 dollars). The number of charges and subsequent court cases that would be prevented, as a result of the orders (75), is then multiplied by the average court costs. The total benefit would be $290,775.06 per year for a total of $2,907,750.64 up to 2023. With a discount rate of 7% this amount would be $2,042,282.37.

Costs

Cost for the development and implementation of a communication plan

It was determined that 10% of the total communication budget (entire estimated budget is $300,000 over five years) would be used to inform and instruct stakeholders and First Nations individuals and communities of the new requirements of the proposed Regulations.

Therefore, the budget for the communication campaign for the proposed Emergency Protection Orders Regulations would be $31,166 (2013 dollars) for the first two years following the coming into force of the Regulations. With a discount rate of 7%, the final amount is estimated at $28,174.

Training costs

It was estimated that an amount of $870,000 would be necessary over five years for Public Safety Canada and an amount of $2,716,950 for the Royal Canadian Mounted Police to train enforcement officers on the Family Homes on Reserves and Matrimonial Interests or Rights Act.

It is estimated that 70% of these amounts will be required to train officers on the proposed Emergency Protection Orders Regulations, which means amounts of $609,000 and $1,901,870 for a total of $2,510,870.

It is estimated that a total budget of $570,000 for the education of legal experts will be required over five years, for promoting and marketing the Act and its Regulations. It is estimated that 30% of this amount ($171,000) will be used to inform judges and legal experts on the implications of the proposed Regulations.

The total amount for training will be distributed as follows: $166,860 will be required in the first year, $787,255 in the second year, $598,180 in the third and fourth years, and $635,580 for the fifth year, for a total of $2,786,070. With a discount rate of 7%, the estimated amount is $2,241,370.

Court cost for second hearings

Individuals at risk of family violence and First Nations communities will most likely incur travel and accommodation costs if an additional hearing is required in relation to the issuance of an emergency protection order. Primary hearing costs are not included, as the orders can be requested by telecommunication and issued within 24 hours.

The first step in this valuation is to determine the number of protection orders that could be issued on an annual basis. This number is calculated by multiplying the rate of on-reserve individuals who experience spousal violence (4.2%) by the number who would likely report violence to authorities (27%) and then by the number of those reporting who gain protection orders against the perpetrator (32%). This calculation is done for every year over a 10-year period. It is estimated that 5 515 protection orders will be executed in that period, for an average of 552 orders per year.

Therefore, the cost to individuals at risk of family violence is evaluated based on the potential number of orders that could go to a judge for review. According to the report titled Alberta's Protection Against Family Violence Act: A Summative Evaluation, 97% of orders go to a judge for review. (see footnote 2) This would be equivalent to approximately 535 orders per year (97% of 552). However, based on information from Alberta, claimants only attended second hearings 51% of the time, which would equate to 273 hearings (51% of 535). Therefore, on an annual basis, approximately 273 individuals would have to incur travel, accommodation, and lost revenue costs as a result of protection orders.

Certain assumptions were made in order to calculate the costs. It is estimated that travel to go to a hearing would cost approximately $1,000, the hotel would cost at $100 per night, while meals and incidentals would cost $90.15 per day (based on the Treasury Board policy on travel). It is estimated that a hearing would take approximately three days. The median income on reserve was estimated at approximately $14,697 per year, according to Aboriginal Affairs and Northern Development Canada's INSTAT statistics based on 2011 National Household Survey data, which means that, considering that there are 260 working days per year, an average salary would be $56.53 per day. The incidental costs, foregone salary per day and hotel cost were multiplied by the number of days (3) for the rehearing. The $1,000 for the travel was added to this amount. The total amount was then multiplied by the expected number of hearings per year (273). Therefore, the cost of court hearings to individuals at risk is estimated at $493,487.48 per year, which would mean a total of $4,934,874.81 up to 2023. With a discount rate of 7%, this amount would be $3,466,049.56.

Another component of the costs of additional hearings is the cost that could be incurred by Band Council members who wish to be present at hearings. Assuming an average of 552 protection orders would be issued per year, an estimated 97% of them would proceed to review/hearing (535). Based on statistics from Alberta, the respondent (agent) only attended second hearings 32% of the time and legal counsel 22% of the time. It is assumed that community representatives would only attend when the respondent attends (32% of the time). Thus, community representatives would be present at an estimated 171 hearings. This portion of the evaluation of the cost took into account the number of Band Council representatives at the hearing (2), the travel costs (travel, $1,000; incidentals, $90.15 per day; hotel, $100 per night), the number of days at the hearing (3) and the legal costs of lawyers during those days (lawyers' fees, $1,032). Therefore, the costs to be incurred by Band Councils at rehearing were estimated at $720,423 per year for a total of $7,204,230 up to 2023. With a discount rate of 7%, this amount would be $5,059,949.68.

Cost of alternate living

Individuals with orders against them will be forced to seek alternative living arrangements. This cost of alternate living was evaluated assuming that the cost of alternative living arrangements would be approximately $100 per night, plus a daily cost of $90.15 for meals and incidentals. In Canada, the duration of emergency protection orders can vary greatly. However, under these proposed Regulations, the duration of the initial order will be set at a maximum of three months (90 days). Therefore, for the purposes of these calculations, it was assumed that orders would be in effect for 90 days. This amount was then multiplied by 552, which is the average number of expected orders per year. The total cost per year would be $9,813,686.45, for a total of $98,136,864.49 up to 2023. With a discount rate of 7%, this amount would be $68,927,226.99. It is worth noting that the aforementioned costs may be higher than what may actually be incurred by the party. For instance, some of the costs may be paid by friends and family, or may be representative of an increase in inconvenience or increased travel time related to not living at the matrimonial property.

Cost to the provinces and territories for court hearings

It was estimated that the administrative costs for the province and territories with similar legislation would be minimal. Data for the administrative costs for the provinces without similar legislation was not obtainable.

The costs that could be incurred by the provinces and territories are estimated with the anticipated average increase in hearings in the range of 552 per year and the potential associated costs. According to An Estimation of the Economic Impact of Spousal Violence in Canada, 2009 and the Legal Aid Survey of Statistics Canada, the cost of a criminal case was $1,477 in court costs, $1,223 in prosecution costs, and $1,032 in legal aid costs, for a total of $3,732 per case (or $3,877 in 2013 dollars).

Therefore, it is estimated that the introduction of this legislation would result in an increase of costs to all the provinces and territories (with or without current legislation) in the amount of $1,638,350.74 per year for 10 years, for a total amount of $16,383,507.48. With a discount rate of 7%, the final amount would be $11,507,090.07.

Other quantitative benefits

It is anticipated that the number of families at risk of family violence will be reduced by an average of 366 cases per year, for a total of approximately 3 659 cases over 10 years.

Qualitative benefits

Enforcement officers will be empowered to take action to prevent cases of family violence where they may not have the authority to act without the proposed Emergency Protection Orders Regulations.

Children and their caretakers can remain connected to their communities and continue their contribution towards overall community wellness, which would be expected to have positive multiplier effects on community members. Further, it could be expected that children and their caretakers would have better mental health outcomes if the threat of abuse is mitigated. It is also expected that these benefits will increase over time as cyclical and generational instances of abuse should be mitigated by the issuance of emergency protection orders.

There will also likely be increased capacity for shelters given that it takes fewer resources to house one perpetrator than it does to house a caretaker with their children.

These benefits have a greater impact on the most vulnerable members of society, namely children and victims of abuse.

Costs, benefits and distribution (see reference 1)		First Year (2014)	Final Year (2023)	Total (Present Value)	Annual Average
A. Quantified impacts (in constant 2013 dollars) (see reference 2)
(1) Benefit — increased well-being of family at risk	Groups at risk	$15.9M	$18.8M	$118.1M	$16.8M
(2) Benefit — reduction of costs resulting from criminal offence	Agent of family violence	$136K	$136K	$952K	$136K
(3) Benefit — reduction of court and legal costs resulting from criminal offences	Provinces and territories	$291K	$291K	$2.0M	$291K
(1) Cost — development and implementation of communication plan	Aboriginal Affairs and Northern Development Canada	$16K	$0K	$28K	$4K
(2) Cost — training for enforcement agencies	Enforcement agencies	$167K	$636K	$2.2M	$319K
(3a) Cost — court costs for second hearings	Groups at risk	$493K	$493K	$3.5M	$493K
(3b) Cost — costs for Band Councils to be at rehearing	First Nations communities	$720K	$720K	$5.06M	$867K
(4) Cost — alternative arrangements for people with orders against them	Agent of family violence	$9.8M	$9.8M	$68.9M	$9.8M
(5a) Cost — additional costs for the provinces with legislation	Provinces with legislation	$1.2M	$1.2K	$8.4M	$1.2M
(5b) Cost — Additional costs for the provinces without legislation	Provinces without legislation	$447K	$447K	$3.1M	$447K
Net benefits				$29.9M
B. Quantified impacts (in non-dollars)
Benefit — the number of families at risk of family violence will be reduced	Groups at risk	0	...	3 659	366
C. Qualitative impacts
Benefits: Enforcement officers will be empowered to take action to prevent cases of family violence where they may not have the authority to act without the proposed regulations. The Regulations should reduce the risk of family violence, by allowing appropriate actions to be taken, such as a protection order, before the family violence occurs. Children and their caretakers can remain connected to their communities and continue to contribute towards overall community wellness. The Regulations should reduce the risk of family violence. This will make families less likely to incur avoidance costs that they may otherwise have had to pay. The Regulations should reduce the burden on shelters, as it is easier to find shelter for one agent of violence or perpetrator than to find shelter for a caregiver and children.

Reference 1
The analysis period is 10 years.

Reference 2
The discount rate used to estimate present values was 7%.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

Engagement on the proposed Emergency Protection Orders Regulations took place during the summer of 2010 with provinces and in September 2010 with national Aboriginal organizations. Letters offering engagement on the Emergency Protection Orders Regulations were sent out to the provinces and territories, the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada, the National Association of Friendship Centres and the Lands Advisory Board and Resource Centre. During consultations, one Aboriginal organization stated that victims of domestic violence in First Nations communities tend to confide in family members and front-line workers as opposed to the Royal Canadian Mounted Police and police officers. To respond to this concern, the Emergency Protection Orders Regulations allow for any appropriate third party, such as a social worker, community nurse, or family member, to make an application on behalf of a victim. Other issues raised by these organizations were not specific to the Emergency Protection Orders Regulations, but instead concerned the broader implications of the legislation, such as the inherent jurisdiction and lack of resources for victims of family violence.

One Aboriginal organization requested a meeting, which occurred September 8, 2010, to discuss questions regarding mandatory mediation, the use of elder councils and alternative dispute resolution. The organization also raised concerns regarding intentional false claims of domestic abuse and one of the participants asked if it would be possible to define what does not constitute violence, as had been done in Alberta's Family Law Act. These issues were discussed but as they were deemed extraneous to the intent of the Regulations and pertained more to the content of the legislation, they were not incorporated in the proposed Emergency Protection Orders Regulations. The proposed Regulations are narrow in scope and specific to procedure and process and would not be the appropriate vehicle to address the aforementioned issues. It is important to note the legislation does not preclude the possibility of alternative dispute resolution or the use of elder councils.

Conference calls to discuss and give an overview of the proposed Emergency Protection Orders Regulations were organized with provinces that requested them. In the summer and fall of 2010, comments were provided during the conference calls and in writing by the provinces and the territories. The comments provided by the provinces were largely outside the scope of the content of the Emergency Protection Orders Regulations and included concerns about the process, the narrow transition time to allow for implementation and the costs of implementing the Act and the accompanying regulations, such as amending their own procedures. Mitigation strategies included clarifying for provincial officials that the Regulations will provide for rules of practice and procedure for clarity where the relevant provincial or territorial authority has not adapted or made its own rules of practice and procedure under the Family Homes on Reserves and Matrimonial Interests or Rights Act; reiterating that Aboriginal Affairs and Northern Development Canada was continuing to work toward an implementation plan; and keeping the provinces informed on the status of the proposed Regulations. Although Aboriginal Affairs and Northern Development Canada recognized the issue of availability of resources, it was deemed part of a much larger question beyond any relatively small additional impact created by the Regulations. Provinces were also made aware that one of the primary components of the implementation plan is to train front-line officers regarding the issuance of emergency protection orders on reserve.

One of the comments, however, was incorporated in the proposed Emergency Protection Orders Regulations. One of the provinces raised the issue of confidentiality related to substitute service of orders pursuant to subsection 19(1) of the proposed Emergency Protection Orders Regulations. To address this concern, subsection 19(1) was amended to specify that the court must be satisfied, prior to allowing a substitute service of an order, that a substituted service will not disclose any information that was ordered to be kept confidential.

In order to keep the provinces, territories and First Nations organizations abreast of the development of the proposed Emergency Protection Orders Regulations, a second letter was sent on November 19, 2013, asking them to review the proposed Emergency Protection Orders Regulations and provide comments by December 6, 2013. Only Manitoba raised concerns regarding socio-economic conditions on reserve and how those conditions could impede successful implementation of emergency protection orders in First Nations communities. As these issues are beyond the scope of the proposed Regulations, they were not addressed, although they were noted as an important consideration moving forward.

In addition to the consultations with provinces, territories and First Nations organizations, the proposed Emergency Protection Orders Regulations were presented to the Standing Senate Committee on Human Rights at the end of May 2010.

The Emergency Protection Orders Regulations were also discussed during presentations to family law lawyers from the federal, provincial and territorial governments on October 9, 2013, and November 6, 2013, and with family law practitioners on November 22, 2013. During these meetings, a concern was raised regarding education and training for implementation, especially related to the emergency protection orders and reaching the correct judicial and enforcement representatives. The concern was expressed that training would need to be region-specific as the different regions have different procedures. Representatives of the Department of Justice will support the Royal Canadian Mounted Police and Public Safety Canada in the development of training material to ensure that the training reflects regional differences.

Regulatory cooperation

The Government of Canada consulted with relevant provinces and territories to ensure they were aware of the new responsibilities associated with the Family Homes on Reserves and Matrimonial Interests or Rights Act and its accompanying Regulations. Aboriginal Affairs and Northern Development Canada recognized that while the federal regime may not align perfectly with the system in some provinces, the legislation and the Regulations have been developed with the objective of balancing the need for a consistent system on reserves across Canada with the need for harmony with the provinces. Further, the Government of Canada sought to minimize upfront costs in relevant provinces and territories that already have systems in place to enable them to adapt their existing regulations so that they could be applied pursuant to the Family Homes on Reserves and Matrimonial Interests or Rights Act.

Rationale

The estimated cost of the proposed Emergency Protection Orders Regulations is approximately $91.2 million over a period of 10 years following the enactment of the Regulations. The total benefit is estimated at approximately $121.1 million over the same period. The net benefit of this initiative is valued at approximately $29.9 million. This net benefit is a conservative estimate since some benefits were qualitative benefits that cannot be monetized.

It is also anticipated that the number of families at risk of family violence will be reduced due to the enactment of the Emergency Protection Orders Regulations. It is estimated that the proposed Regulations would decrease the incidences of violence by an average of 366 cases per year for the next 10 years by allowing for the removal of the perpetrator of family violence from the family home.

Once the Emergency Protection Orders Regulations are enacted, enforcement officers will have additional powers to take action to prevent incidences of family violence on reserve. In addition, the proposed Regulations will allow children and their caretakers to remain in their homes and connected to their communities; it will therefore benefit the most vulnerable members of society, specifically minors and victims of abuse.

Considering the findings of the cost-benefit analysis, it is recommended that the proposed Emergency Protection Orders Regulations, drafted in accordance with the Family Homes on Reserves and Matrimonial Interests or Rights Act, be enacted and implemented, since the benefits of the Regulations are much greater than their estimated costs.

In addition, the benefits resulting from the proposed Emergency Protection Orders Regulations will be mainly for the groups at risk of family violence and the agents of family violence on reserves. This is in accordance with the objectives of the Family Homes on Reserves and Matrimonial Interests or Rights Act to provide basic rights and protections to individuals on reserves during the relationship, in the event of a relationship breakdown, and on the death of a spouse or common-law partner regarding the family home and other matrimonial interests or rights.

Implementation, enforcement and service standards

Aboriginal Affairs and Northern Development Canada will be responsible for the implementation support for the Family Homes on Reserves and Matrimonial Interests or Rights Act and its proposed Emergency Protection Orders Regulations, enacted in cooperation with its partners, such as the Royal Canadian Mounted Police, Public Safety Canada, legal organizations or institutes, and some First Nations organizations.

Aboriginal Affairs and Northern Development Canada will develop and disseminate information on the legislation and the proposed Emergency Protection Orders Regulations in order to inform affected stakeholders.

Legal experts will also be provided with educational materials to assist them in the application of the legislation. Organizations will be provided with funding throughout the implementation program to develop materials for the judiciary and for legal experts.

Enforcement agency officers will need to undergo training and education to increase their understanding of how to enforce the legislation and the proposed Emergency Protection Orders Regulations. The Royal Canadian Mounted Police will develop and deliver training on the legislation and the proposed Regulations that will include an online course available to all employees, as well as classroom training delivered in each province or territory, and portable reference material for the use of front-line Royal Canadian Mounted Police members in real-time situations. Public Safety Canada will facilitate the development of best practices and education resources regarding the legislation to assist officers working in First Nations and municipal police services where a First Nations policing program agreement is in place.

Aboriginal Affairs and Northern Development Canada has also established a Centre of Excellence for Matrimonial Real Property to assist with the implementation of the Family Homes on Reserves or Matrimonial Interests or Rights Act, which received Royal Assent on June 19, 2013. The Centre of Excellence was established within the National Aboriginal Lands Managers Association, a First Nations organization that operates at arm's length from the Government of Canada. The Centre will provide information on the protections and rights available to individuals and families living on reserves, as well as the provisional federal rules and the proposed Emergency Protection Orders Regulations, once in force.

Contact

Neil Burnett
Acting Senior Director
Lands Modernization Directorate
Aboriginal Affairs and Northern Development Canada
Email: Neil.Burnett@aadnc-aandc.gc.ca
Telephone: 819-953-0517
Fax: 819-953-0248

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 53(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act (see footnote a), proposes to make the annexed Emergency Protection Orders Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Neil Burnett, A/Director, Lands Modernization Directorate, Department of Aboriginal Affairs and Northern Development, 10 Wellington Street, 17^th Floor, Gatineau, Quebec K1A 0H4 (tel.: 819-953-0517; fax: 819-953-0248; e-mail: Neil.Burnett@aadnc-aandc.gc.ca).

Ottawa, April 3, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

EMERGENCY PROTECTION ORDERS REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Family Homes on Reserves and Matrimonial Interests or Rights Act.

“applicant”
« demandeur »

“applicant” means the person who initiates an application, whether or not they are represented by another person who acts on their behalf.

“application”
« demande »

“application” means an application for an emergency protection order under subsection 16(1) of the Act.

“family violence”
« violence familiale »

“family violence” has the same meaning as in subsection 16(9) of the Act;

“respondent”
« défendeur »

“respondent” means the spouse or common-law partner of an applicant.

“telecommunication”
« télécommunication »

“telecommunication” includes communication by telephone, e-mail or fax.

“vulnerable person”
« personne vulnérable »

“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.

Application of Regulations

2. These Regulations apply in any province in which a designated judge is authorized to act and no rules of practice or procedure have been made under subsection 47(2) of the Act.

APPLICATION

MAKING AN APPLICATION

How to apply

3. (1) An application is made to a designated judge and may be made in person or by telecommunication.

Telecommunication

(2) If an application is made by telecommunication, the applicant or the person acting for the applicant must be available to speak to the designated judge by telephone or other telecommunication that permits the judge and the applicant or the person acting for the applicant to speak directly to one another.

PERSON ACTING FOR APPLICANT

Verification of consent

4. (1) Before hearing an application that is made by a person acting for the applicant, 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 consent

(2) Before granting leave to a person to make an application for an applicant without the applicant's consent, the designated judge must be satisfied, by evidence given under oath or affirmation, that

• (a) the 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;
• (b) the person is acting in good faith; and
• (c) either
  • (i) the applicant is for any reason unable to give consent, or
  • (ii) there are reasonable grounds to believe that, because of family violence, 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 ORDER

Request for confidentiality

5. (1) Before or during the hearing of an application, the applicant or the person acting for the applicant may ask the designated judge to order that information in the application or disclosed during the hearing be kept confidential. The information 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.

Conditions

(2) The designated judge may make a confidentiality order only if he or she is satisfied that

• (a) confidentiality is necessary for the safety of the applicant or a witness or the safety or physical or emotional well-being of a vulnerable person; or
• (b) 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 confidentiality

(3) If a designated judge is satisfied that any information in the application or disclosed during the hearing meets one of the conditions described in subsection (2), he or she must order that it be kept confidential, whether asked to do so or not.

CONTENT OF APPLICATION

Information to be included

6. During the hearing of the application, the designated judge must ensure that the following information is provided:

• (a) the applicant's name, date of birth and contact information;
• (b) the name and contact information of any person acting for the applicant;
• (c) the respondent's name, date of birth and contact information, if known;
• (d) the name and, if known, the date of birth of any vulnerable person and any information that could help the designated judge to consider their best interests;
• (e) the name of any person other than the applicant and respondent who has an interest or right in the family home;
• (f) the duration of the conjugal relationship between the applicant and respondent;
• (g) 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;
• (h) a description of any past family violence;
• (i) 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;
• (j) 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 for the applicant;
• (k) 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;
• (l) 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;
• (m) 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;
• (n) 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; and
• (o) any other information that the designated judge considers necessary.

HEARING

Evidence

7. On receiving an application, the designated judge must hear and consider the allegations and evidence of the applicant or person acting for the applicant and may hear and consider any other evidence that is offered.

Oath or affirmation

8. During the hearing of the application, the designated judge must take the evidence under oath or affirmation.

Written record

9. (1) The designated judge must ensure that a legible written record is made of the evidence of each witness.

Verification of record

(2) If the designated judge records the evidence of a witness by taking notes, he or she must

• (a) ensure that the witness understands the notes and agrees with their content; and
• (b) sign and date the notes.

Conduct of hearing

10. The 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 for the applicant at ease and help them to understand the proceedings.

Adjournment

11. The designated judge may adjourn the hearing at any time to

• (a) change the location of the hearing or the manner of making the application to accommodate a witness; or
• (b) allow evidence to be heard in person at a time and place directed by the designated judge, if hearing the evidence by telecommunication proves unsatisfactory.

Continuation

12. If the designated judge begins to hear the application but is unable to continue, another designated judge may

• (a) continue the hearing if the record of the evidence received by the first judge is available for review; or
• (b) begin a new hearing if the record is not available.

DECISION

Fast decision

13. The designated judge must conclude the hearing and decide whether to make an emergency protection order without delay, but in any case within 24 hours after the application is made.

Order forwarded to court

14. A 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 court

15. A 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 NOTICE

TRANSFER OF EMERGENCY PROTECTION ORDER AND CAUTION

Copies to peace officer

16. (1) After 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 dictation

(2) The designated judge may also dictate the contents of the order and caution to a peace officer by telephone or other 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 copies

(3) A copy that is provided in accordance with this section has the same effect as the original.

CAUTIONING OF RESPONDENT AND SPECIFIED PERSONS

Content

17. The 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:

• (a) the name of the respondent and of every person specified in the order;
• (b) the name of the designated judge who made the order and the place where it was made;
• (c) a statement that the order was made under subsection 16(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act;
• (d) the date of the order;
• (e) a statement that the order will remain in force until the day set out in the order;
• (f) a statement of the possible consequences of failing to comply with the order;
• (g) a statement that the respondent and any person specified in the order may, within 21 days after receiving notice of the order, apply to
  • (i) change the order or any provision in the order,
  • (ii) shorten or extend the period for which the order or any provision in the order is to remain in force, or
  • (iii) revoke the order;
• (h) if such an application is made, the name of the court and the place where it must be filed; and
• (i) a 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 CAUTION

Service

18. (1) When a peace officer is provided with copies of an emergency protection order and caution, service on 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 service

(2) The peace officer may serve the respondent or a specified person

• (a) in person;
• (b) by fax or e-mail, provided that the peace officer receives oral or written confirmation from the respondent or specified person that the order and caution have been received; or
• (c) subject to subsection (3), by 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-up

(3) If the order and caution are served by the method set out in paragraph (2)(c), the peace officer must, as soon as possible, provide the respondent or specified person with paper copies of the order and caution either in person or by a means of telecommunication that produces an exact copy.

SUBSTITUTED SERVICE

Substituted service order

19. (1) For the purposes of subsection 16(7) of the Act, upon 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 thinks appropriate — if it is satisfied that no information ordered to be kept confidential under subsection 5(1) will be disclosed and

• (a) reasonable efforts have been made to serve the respondent or specified person; or
• (b) the respondent or specified person is evading service.

Method of substituted service

(2) For the purposes of this section, substituted service is made by

• (a) giving copies of the emergency protection order and caution to a 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;
• (b) by posting copies of the order and caution in a public place if this method of service is likely to bring the order and caution to the attention of the respondent or specified person; or
• (c) by posting copies of the order and caution in a public place if there is reason to believe that the respondent or specified person is aware of the order and has left his or her habitual residence.

Application by peace officer

(3) An 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.

NOTICE AND SERVICE ON APPLICANT

Notice of service

20. (1) For the purpose of informing an applicant that the respondent or a specified person has been served, a peace officer must speak to the applicant or person acting for the applicant in person or by telephone or other means of telecommunication that permits the peace officer and the applicant, or the person acting for the applicant, to speak directly to one another.

Service in person

(2) When the information is given in person, the peace officer must at the same time serve the applicant or person acting for the applicant with copies of the emergency protection order and caution unless he or she already has copies of those documents.

Service using telecommunication

(3) When the information is given by telecommunication, the peace officer must as soon as possible serve the applicant or person acting for the applicant with paper copies of the order and caution, unless he or she already has copies of those documents, in person or by a means of telecommunication that produces an exact copy.

Duty of person acting for applicant

(4) When a person acting for an applicant is informed that the respondent or a specified person has been served, he or she must inform the applicant without delay.

Duty of person acting for applicant

(5) When a person acting for an applicant is served with copies of the order and caution, he or she must give them to the applicant without delay.

NOTICE OF REFUSAL

Notice of refusal

21. (1) A designated judge who refuses to make an emergency protection order must inform the applicant or person acting for the applicant 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 applicant

(2) When a person acting for an applicant is informed that an order has been refused, he or she must inform the applicant of the refusal without delay.

COMING INTO FORCE

Registration

22. These Regulations come into force on the day on which they are registered.

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