Legal Protection Orders

This section of the resource provides information on:

Why Protection Orders are Important to Women Experiencing Violence

Protection Orders are an important legal option for women experiencing violence. When a woman fears for her safety and the safety of her children or other family members, there are a number of legal tools available under civil and criminal laws to help protect her and her family.

In general, protection orders work to keep women safe by prohibiting the abusive man from:

  • contacting or communicating with the woman, directly or indirectly
  • being within a certain distance of the locations where the woman is likely to be, such as the home, workplace or children’s school
  • possessing weapons

Breach of a protection order is a criminal offence.

Civil protection orders – made under family law and domestic violence legislation – are particularly important for women who do not want to report family violence to the police but are interested in accessing legal protection in other ways.

For a discussion of why Aboriginal women may not choose to report family violence to the police, see this section on barriers to justice. It’s important for VAW support staff and women to remember that:

  • Some men do not respect protection orders and will breach them, so protection orders are just one aspect of safety planning
  • Protection orders rely on women being willing and able to call the police to report any breach.

What are the Various Kinds of Protection Orders?

In the Building Service Capacity training sessions we discovered that there was considerable confusion about “protection orders”.

This confusion is understandable since there are different kinds of orders under different laws and involving different procedures, all of which are intended to protect women from abusive men. In particular, participants often weren’t clear on the differences between “peace bonds” (criminal law) and “protection orders” under Domestic Violence and Family Violence Laws (provincial/territorial law). The differences between peace bonds and family violence protection orders are discussed further in this section.

Protection orders may be made under:

  • Domestic Violence or Family Violence Law (provincial/territorial)
  • Criminal Law (federal)
  • Family Law (provincial/territorial)
  • Family Homes on Reserves and Matrimonial Interests or Rights Act (federal)

Please note:
Not all provinces have enacted domestic/family violence legislation. New Brunswick, Quebec, Ontario and B.C. have not enacted laws that deal exclusively with family violence.

It is important for VAW support staff and women to understand that:

  • there are different legal tests for the various orders that can be made under criminal/domestic violence/and family laws
  • different procedures are used to obtain these orders
  • different kinds of orders can be made under different laws. For example, in some jurisdictions exclusive possession of the home by the woman can be part of an emergency protection order. In other jurisdictions this order can only be made by a higher court through a different civil process

In general women do not need a lawyer to obtain a protection order in circumstances of immediate or imminent harm under domestic/family violence legislation or to get a peace bond in criminal court.

Other protection orders, such as orders which give a woman longer-term rights to occupy family property under family law or domestic/family violence laws, tend to be more legally complex and legal representation may be necessary, if it is available.

Protection Orders Under Domestic Violence Legislation

In the Building Service Capacity training, we reviewed the following legislation:

There are differences between these provincial and territorial laws including:

  • who, in addition to current and former spouses or partners, can apply for protection orders
  • what can be ordered
  • the specific process for applying for an order
  • the duration of the order if granted, which can range from 90 days to 3 years depending on the province or territory.

There are common elements, regardless of the province or territory, including that these laws:

  • are civil (not criminal)
  • require evidence (facts) from the woman that domestic or family violence has occurred or is likely to occur in the near future and that the woman fears for her and/or her family’s safety
  • include a procedure to obtain a protection order
    • on an urgent basis
    • over the telephone
    • without notice to the abusive man
    • which is enforceable against the man once it is “served” on him (he is given a copy of the order) by the police or RCMP
    • and which prohibits the abusive man from:
      • Communicating directly or indirectly with the woman and children, and in some cases other family members
      • Being within a certain distance of the woman and children
      • Possessing weapons, including allowing police to seize weapons.

In some jurisdictions, exclusive possession of the family home can be ordered on a temporary basis under an emergency protection order.

In most jurisdictions, once a protection order is granted, it is difficult for the woman to have it changed or set aside.

In some provinces and territories, domestic or family violence legislation includes two levels of protection order:

  • an urgent or emergency order (as described above)
  • a longer term protection order which:
    • may be a useful option if there is no immediate danger or urgency (for example, the man is in jail)
    • involves a more complex process
    • is made on notice to the abusive man
    • allows the Court to make more extensive orders involving money and/or property, such as
      • compensation for damages caused by the abuse
      • exclusive possession of the family home (particularly important in jurisdictions where exclusive possession can’t be ordered on an emergency basis)
    • usually requires the woman to be represented by a lawyer.

In most jurisdictions the Court cannot order a man to attend counseling, however, in NWT and Alberta the Court can make this order as part of the longer term, not emergency, protection order process.

In Nunavut, a Court can order counseling under a Community Intervention Order, provided the Respondent man – and any other family members participating in the counseling – consent.

In most cases a woman will need a lawyer to obtain this longer-term protection order. Women should be encouraged to apply for legal aid.

Emergency and longer-term protection orders by jurisdiction are:

There are excellent resource materials on these laws in each province and territory which provide detailed information on:

  • Who can apply for a protection order
  • What can be ordered
  • The step by step of how to obtain a protection order
  • The different kinds of protection orders available

The links to these resources in Alberta, Manitoba, Northwest Territories, Nunavut and Saskatchewan are below in Useful Resources.

Because there is no domestic violence legislation in Ontario, the Useful Resources section directs you to the step by step process for obtaining an ex parte restraining order (without notice to the abusive man) under family law. This process is more complicated than the procedures under domestic violence legislation. You can find more information in these useful resources by METRAC (Metropolitan Action Committee on Violence against Women and Children), Know Your Legal Rights, and the Ministry of the Attorney General.

Protection Orders Under Criminal Law

There are a number of “protection” orders in criminal law. These are:

  • Conditions of release if the police have been called and charges laid:
    • Undertaking
    • Bail
  • Non-communication order if bail is denied
  • Probation conditions following a conviction and sentencing
  • Peace Bond

Conditions of Release – Undertaking or Bail Conditions:

Where police charge an abusive man, he may be released from the police station. If he is released by the police, usually his release is subject to conditions. A “promise to appear” in Court and an “undertaking” – a promise to abide by certain rules may be made in writing to the police officer in charge as a condition of release.

In many jurisdictions in Canada where domestic violence charges are involved, intimate partners are held in custody until a bail hearing is held. If the Court is convinced that the accused is likely to attend his court appearances and does not pose a public safety risk to the woman or others, he will usually be released on conditions.

Common conditions of release include:

  1. non communication with complainant/victim (woman, in this case)
  2. non-communication with a child, if the child is the victim
  3. provision will be made for access to the child (often involving the assistance of a third party to minimize contact with woman)
  4. non-attendance at the complainant’s place of residence (except for access issues); place of education or employment
  5. no alcohol or drugs (if an issue)
  6. no weapons
  7. sometimes also a prohibition on using cell phones

Non-Communication Order if Bail Denied

If the abusive man is denied bail he may also be ordered, as a condition of his detention, not to communicate or contact the woman, and possibly also members of her family or other witnesses, while he awaits trial.

Conditions of Release – Guilty Plea or Conviction

If the abusive man is convicted of domestic violence charges he will be sentenced.

Probation conditions similar to the conditions above may be ordered as part of the sentence.

Conditions of release, bail and sentencing are also discussed in detail in the Criminal Law section.

Peace Bond

A peace bond is an Order issued under s.810 of the Criminal Code of Canada. The peace bond is not specific to family violence and allows any person who fears for their safety or the safety of their property to ask for an order of the criminal court that the respondent – the person who they are afraid of – be required to stay away from them. Peace Bond conditions are similar to the common conditions of release.

In the Building Service Capacity training sessions we learned that there is a lot of confusion about the difference between “peace bonds” and “protection orders”.

In fact, some participants told us that they didn’t know there was a difference. In their communities, women were simply directed to the courthouse to “get a peace bond” even though an emergency protection order under domestic violence legislation was available as a legal tool.

Where emergency protection orders and/or protection orders are available under family violence legislation, these are generally a better option for women than seeking a peace bond.

Protection orders (POs) under family or domestic violence legislation are generally a better legal tool for women experiencing violence than peace bonds because:

  • POs are specifically designed to address domestic/family violence;
  • The process for obtaining a PO is faster and more accessible than a peace bond
  • A PO can often be obtained over the phone and is thus useful for women in crisis and women in remote communities
  • Depending on the jurisdiction, the RCMP or other designated support persons (including shelter workers in Manitoba or Community Justice Outreach Workers in Nunavut) can help the woman apply for a PO
  • The Justice of the Peace or other judicial authority who hears the PO application are generally specifically trained in the dynamics of abusive relationships
  • POs are designed to respond to urgent situations where there is a risk of violence that is imminent, that is, (likely to occur in the near future. Accordingly these orders are made “ex parte”, which means without notice to the abusive man. This means that the abusive man does not get to cross-examine the woman applying. In the peace bond process, the man can cross-examine the woman making the application.
  • The peace bond process can take weeks or months, the woman will have to testify in open court as to why she needs the peace bond and, as noted above, the abusive man will have the right to cross examine her.

For more information on the step by step process for obtaining a peace bond see:

Mutual Peace Bonds:

Sometimes, when a woman applies for a peace bond and the man alleges that she is abusive too, the Justice of the Peace or the Crown Attorney will suggest that both the woman and the man sign a peace bond in which they agree to stay away from each other. These are called “Mutual Peace Bonds”.

Mutual peace bonds can work against women in abusive relationships, including because they:

  • Effectively make the woman equally responsible for preventing the abuse
  • Will appear on the woman’s – as well as the man’s – Canadian Police Information Centre (CPIC) database records, which can be seen by employers and may suggest to police in future circumstances that the woman has a history of being violent or making threats
  • Can be used by abusive men to continue the cycle of control. For example, an abusive man may convince the woman to contact him and then will call the police to have her charged for breaching the peace bond.

It is not recommended that women agree to a mutual peace bond without first receiving legal advice.

Protection Orders Under Family Law

All provincial and territorial family laws give the Court the power to make various orders, similar to the orders available under domestic violence legislation, to protect women and children in circumstances of family violence.

There are two types of orders under Family Law that protect women from abuse:

  • Exclusive possession or occupation of the family home
  • Restraining or Prohibition orders which restrain, prohibit or restrict the abusive man from contacting or communicating with the woman. These are subject, where relevant, to any order for custody or access to the children.

These orders can be:

  • Emergency (short-term and made without notice to the man)
  • Temporary
  • Permanent

In general, these orders are more complicated and costly to obtain than an emergency order under domestic violence legislation.

In some jurisdictions (Manitoba, NWT, Alberta), legal aid lawyers or family court duty counsel are more available than in other jurisdictions (Nunavut, Ontario, Saskatchewan) to represent women in family law matters. If legal representation is available, it is very strongly recommended.

The benefit of family law orders is that, like the longer-term protection orders under domestic violence legislation, they allow the Court to make orders with respect to family property. This is particularly important in jurisdictions where possession of the family home cannot be ordered by a Justice of the Peace or Judicial Justice of the Peace on an emergency basis.

Family law protection orders may also play a more important role where the woman is in the process of applying for custody of her children and perhaps other family law orders.

For further discussion of family law orders and a sample family law affidavit, including for exclusive possession and a restraining order, see the Family Law section.

Protection Orders under the “MRP” Law:
Family Homes on Reserves and Matrimonial Interests or Rights Act

Emergency protection orders (EPOs) under provincial and territorial domestic violence laws are enforceable on reserve.

In other words, an EPO or PO under provincial or territorial domestic violence legislation that prohibits an abusive man from communicating with or following his spouse, applies equally on and off reserve.

Until very recently, however, there has been a “legislative gap”, with respect to family laws that affect real property on reserve. Courts could not make orders under provincial family law, such as for exclusive occupation of a family home or division of property on family breakdown, if the property was located on a First Nation territory or reserve.

In 2013, Parliament passed the Family Homes on Reserves and Matrimonial Interests or Rights Act known as the Matrimonial Real Property on Reserve or MRP law.

For women living on reserve there are two protection orders available under the MRP law:

  1. Emergency Protection Order
  2. Exclusive Occupation Order

For a detailed discussion of these orders, including how to apply for them, see the Matrimonial Real Property on Reserve section.

The benefit of these orders under the MRP law is that they provide protective orders for Aboriginal (and non-Aboriginal) women living on reserve where previously these forms of legal protection were unavailable. The MRP law has been criticized for many valid reasons. The criticism relevant to POs includes:

  • No specific provision has been made for funding legal representation for Aboriginal women to access protection orders under the MRP law
  • The process for obtaining these orders may be more complex than the procedure for emergency orders under domestic violence legislation
  • These orders are made by judges of the provincial courts which may be relatively inaccessible to Aboriginal women, particularly in remote communities.

Steps in the Protection Order Process Under Domestic Violence and Family Violence Laws

The specific steps for obtaining a protection order differ from jurisdiction to jurisdiction but in general, the steps involve:

Step #1: Telling the Story in Writing

The woman, on her own or with the assistance of a designated support person, completes an application form which explains why the protection order is needed.

In many jurisdictions VAW support staff are trained as designated support persons.

In some jurisdictions, other persons may apply for a protection order on behalf of the woman if she is incapacitated or unable to apply on her own behalf.

Here are samples of what the forms look like:

  • Alberta [p5&6 of this booklet]
  • Nunavut (Application for Emergency Protection or Community Intervention Order pg 6)
  • Ontario (Restraining Order)

Helping Women Tell Their Story

In the Building Service Capacity training sessions we did a short exercise to train VAW support staff on how best to tell women’s stories in a legal setting.

Participants read a short fact scenario and compared two versions of the telling of the story.

Version #1 is often how the story is told by the woman in crisis to the VAW Service provider.

Version #2 is the same story but told factually and without emotion. This version is an example of how a story must be told to a court or other legal audience.

Here are a few tips to support a woman who is applying for a protection order:

  • Be factual not emotional
  • Explain “who” the affected family is
    • For example:“I am Miriam. I am 42 years old. I have been living with John for 5 years. We have two children, Mary aged 2 and Jacob aged 4. I also have a child from a previous partner, Jayko aged 8. We all live together with my mother, aged 70.”
  • Start with the most recent event and then describe the history of the relationship
  • Describe whether the abuse is getting worse (escalating) and how
  • Describe the triggers, particularly if they explain why the situation is urgent
  • Try not to overstate or understate the facts
  • Be as detailed, specific and precise as possible
  • For example:
    • Instead of only saying “He threatened me”, use his words. For example, “He told me he’d burn the house down if…..”
    • If he was controlling [“he was very controlling”] state this and then explain how. For example, “He wouldn’t let me see my sisters or my friends.” “He would push me against the wall and put his hands around my throat every time I called my friend Ann.”
    • Instead of just saying “he hit me” – give details. For example, “He punched me in the stomach and in the head. I was winded. I had a large purple bruise on the left side of my face and didn’t leave the house for a week.”
    • Instead of “this is bad for the kids”, be specific. For example, “the children have witnessed the violence. They have seen John threaten to beat me and they have seen him hit me. Jayko is anxious and cries a lot.”
    • Instead of simply “he was drunk”, give detailed factual observations, such as “His eyes were bloodshot and his breath stank. His words were slurred and he was shouting. There were empty bottles on the floor.”

Step #2: Form faxed to or Filed at Court

Once completed, the protection order application form is faxed by the designated support person -VAW support worker, RCMP or Community Justice Outreach Worker depending on the jurisdiction – to the Court or filed with the Court in person by the woman.

Step #3: Telephone or In-Person Hearing

This is often the most difficult step for women. The woman is often in crisis and yet must tell her story, as coherently as possible, to a justice of the peace or judge. She must answer questions and explain why she fears for her safety or the safety of her family and why there is reason for the order to be issued on an urgent basis.

Sometimes women experience the questions put to them by the judge or justice of the peace as challenging them, or disbelieving their story.

VAW support staff should prepare women to expect that they will be asked detailed questions. The issuance of a protection order is a serious matter. The justice of the peace must make sure that the facts (evidence) justify the order being made.

Excerpt from Alberta Manual Protection Against Family Violence Act, 2011:

In determining whether an EPO should be granted, the courts (justice of the peace or judge) must consider, but not be limited to considering, the following:

  • the history of family violence by the respondent toward the claimant [woman] and other family members;
  • whether there is or has been controlling behaviour by the respondent [man] toward the claimant and other family members;
  • whether the family violence is repetitive or escalating;
  • the existence of any immediate danger to persons or property;
  • the vulnerability of elderly claimants;
  • the effect of exposure to family violence on any child of the claimant or on any child who is in the care and custody of the claimant [woman];
  • the best interests of the claimant and any child of the claimant [woman] or any child who is in the care and custody of the claimant [woman]; and
  • the claimant’s [woman’s] need for a safe environment to arrange for longer-term protection from family violence.

The following provisions should not preclude the granting of an emergency protection order:

  • that a protection order or other no contact types of orders have been previously granted (various orders are included);
  • that a respondent [man] has previously complied with a protection order and the conditions;
  • that the respondent [man] is temporarily absent from the residence at time of application;
  • that the claimant [woman] is temporarily residing in an emergency shelter or other place;
  • that criminal charges have been or may be laid against the respondent [man]; and
  • that the claimant [woman] has a history of returning and residing with a respondent [man] after acts of family violence.

Step #4: Protection Order Sent to Police

If the protection order is granted, it is sent immediately to the RCMP or police and registered on CPIC database.

Step #5: Police Serve Order on Respondent Man

The protection order is in effect immediately once it is granted, but the man cannot be charged with breach of the order until he has been “served” with – given a copy of – the order. The police serve the order on the man (respondent).

Step #6: Court Review of the Protection Order

In most jurisdictions, a higher court (judge) will review the emergency protection order granted by the Justice of the Peace or Judicial Justice of the Peace within a certain number of days of the order being granted.

This is usually done in writing, but sometimes the judge may want additional information from the woman.

In some jurisdictions such as Alberta, the woman may be expected to attend the review hearing.

The man (respondent) has an opportunity to oppose the granting of the protection order and ask that it be set aside.

If a review hearing is held and the man does not show up, the emergency protection order is usually kept in place as long as there was enough evidence to support the justice of the peace granting the order.

Step #7: Woman Should Make Copies of the Order

The woman should make copies of the order and keep the order on her at all times. She should provide a copy of the order to key people, such as family members, her employer and the children’s school, so that the police are contacted immediately if the order is breached.

Step #8: Documenting any Breach

If the Respondent man breaches the protection order, the woman should contact the police.

In the trainings, we emphasized the importance of women documenting abuse. We know this is very difficult for women to do, especially if they are experiencing complex trauma.

If a protection order is breached, the details will be important. Sometimes it may help to take notes. For example:

John was standing outside of my home with his hands on his hips for 30 minutes on Dec 22 at approximately 8pm. When my brother shouted at him to leave he didn’t move. The next day, on Dec 23, at 9am, John followed me in his car as I drove the children to school. He was driving a black Ford Explorer. On December 23 at 10pm, the phone rang. The call display number was John’s cell phone number. I didn’t answer. The phone then rang repeatedly from 10pm until midnight. When I finally picked up the phone at midnight, John said “where the hell have you been?”. I hung up the phone. I was terrified.

If the breach of the protection order is through email or text messages, the woman should keep copies of the electronic communication, whether by screenshots, printouts or other means.

Key Information for Women about Protection Orders under Domestic Violence and Family Violence Law

  • A Protection Order under family violence legislation can be a useful legal tool, however to be most effective the woman should be able or willing to call the police if the Order is breached.
  • Where protection orders are available under family violence legislation, they are generally a better legal option than “peace bonds” under criminal law.
  • An application for a Protection Order should be as factual and precise as possible. See tips and examples above.
  • The woman should think clearly ahead of time as to what orders she wants the court to make for her safety.
    • For example in a small community, if the woman knows she’ll run into the abusive partner at the Northern Store, she could ask for an order that he be required to shop for his groceries at specified times to avoid contact.
  • The woman should be told in advance that she may be asked detailed questions by the justice of the peace in the protection order hearing. She may find this questioning unpleasant or difficult, but it is essential that the court record – the facts given to the court – be sufficient for the order to be granted.
  • Once a protection order is granted, the woman should be careful not to contact or communicate with the respondent man.
  • Once a protection order is made, it is difficult for either the woman or man to change the terms or set it aside. This is a particularly serious consideration for women in jurisdictions, like Manitoba, where protection orders tend to be granted for very long periods of time.
  • The woman should keep a copy of the order on her at all times and should leave copies of the order with key persons, such as family members, her employer, and the children’s teacher or school.
  • In addition to calling the police if a protection order is breached, it is useful to document any breach of the protection order. Keep copies of emails or text messages. Notes of times, dates, locations of other forms of prohibited contact or communication can be helpful.

Current as of January 2014.

Useful Resources

Alberta

Manitoba

Northwest Territories

Nunavut

Saskatchewan:

Ontario

Domestic/Family Violence Statutes

Alberta

Manitoba

Northwest Territories

Nunavut

Saskatchewan: