Vol. 148, No. 25 — December 3, 2014

Registration

SOR/2014-266 November 21, 2014

FAMILY HOMES ON RESERVES AND MATRIMONIAL INTERESTS OR RIGHTS ACT

Emergency Protection Orders Regulations

P.C. 2014-1269 November 20, 2014

Whereas the Governor General in Council considers it necessary that the annexed Regulations be made for carrying out the purposes and provisions of the Family Homes on Reserves and Matrimonial Interests or Rights Act (see footnote a);

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to subsection 53(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act (see footnote b), makes the annexed Emergency Protection Orders Regulations.

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 makes 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, email 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 — no rules under subsection 47(2)

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

Application — justice of the peace

(2) These Regulations also apply in any province in which the designated judge is a justice of the peace, except to the extent that rules of practice or procedure made under provincial law apply to an application under section 16 of the Act.

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 on the applicant’s behalf must be available to speak to the designated judge by telephone or other means of telecommunication that permits the judge and the applicant or the person acting on the applicant’s behalf to speak directly to one another.

PERSON ACTING FOR APPLICANT

Verification of consent

4. (1) Before hearing an application that is made by a person acting on the applicant’s behalf, the designated judge must be satisfied, by evidence given under oath or affirmation, that the person is acting with the applicant’s consent.

Leave to apply without consent

(2) In the absence of consent, before granting leave to a person to make an application on behalf of an applicant without the applicant’s consent, the designated judge must be satisfied, by evidence given under oath or affirmation, 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 family violence has occurred, the applicant or a vulnerable person is exposed to an immediate risk of harm or property is exposed to an immediate risk of damage.

CONFIDENTIALITY ORDER

Request for confidentiality

5. (1) Before or during the hearing of an application, the applicant or the person acting on the applicant’s behalf may ask the designated judge to order that all or some of the information in the application or disclosed during the hearing be kept confidential. The information to be kept confidential may include the name of the applicant, the respondent, a witness or a vulnerable person as well as any information that is likely to identify them.

Conditions

(2) The designated judge may make a confidentiality order 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) protection from the undue hardship or adverse effect that could be caused to the applicant, a witness or a vulnerable person by making the information public outweighs the public’s right to the information.

Duty to order confidentiality

(3) The designated judge must make a confidentiality order, whether asked to do so or not, if he or she is satisfied that any information in the application or disclosed during the hearing meets either condition described in subsection (2).

CONTENT OF APPLICATION

Information to be included

6. During the hearing of the application, the designated judge must ask the applicant, the person acting on the applicant’s behalf or a witness for the following information:

(a) the applicant’s name, date of birth and contact information;
(b) the name and contact information of any person acting on the applicant’s behalf;
(c) the respondent’s name, date of birth and contact information;
(d) the name and 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 on the applicant’s behalf;
(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 on the applicant’s behalf 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.

Record of evidence

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

Verification of record

(2) If the designated judge records the testimony 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 on the applicant’s behalf 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. The decision must be made 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 means of telecommunication that permits the designated judge and the peace officer to speak directly to one another. The officer’s record of the dictation constitutes a copy of the order and caution.

Effect of 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, unless it is already set out in the order:

(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 of its provisions,
- (ii) shorten or extend the period for which the order or any of its provisions is to remain in force, or
- (iii) revoke the order;
(h) the name of the court to which the respondent or person specified in the order may apply under paragraph (g) and the place where the application may be filed; 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 of the respondent and any person specified in the order must, for the purposes of subsection 16(7) of the Act, be carried out without delay.

Methods of service

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

(a) in person;
(b) by fax or email, if the peace officer receives oral or written confirmation from the respondent or specified person that the order and caution have been received; or
(c) 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) However, if the order and caution are served by the method set out in paragraph (2)(c), the peace officer must, as soon as feasible, provide the respondent or specified person with paper copies of the order and caution in person or provide them by a means of telecommunication that produces an exact copy.

SUBSTITUTED SERVICE

Substituted service order

19. (1) For the purposes of subsection 16(7) of the Act, on the application of a peace officer, a court may order substituted service of the respondent or a specified person — on the terms and using the method that it considers appropriate — if it is satisfied that no information ordered to be kept confidential under subsection 5(1) will be disclosed 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 may be made by giving copies of the emergency protection order and caution to

(a) 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) an adult (other than the applicant) who resides with the respondent or specified person and who is able to and agrees to give them to the respondent or specified person without delay;
(c) an adult (other than the applicant) who knows the respondent or specified person and who is able to and agrees to give them to the respondent or specified person without delay; or
(d) an adult at the respondent or specified person’s last known business or employment address (other than the applicant’s business or employment address) who is able to and agrees to give them to the respondent or specified person without delay.

Application by peace 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.

Definition of “adult”

(4) For the purposes of subsection (2), “adult” means a person who has reached the age of majority in the province in which the order and caution are served.

NOTICE AND SERVICE ON APPLICANT

Notice of service

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

Service in person

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

Service using telecommunication

(3) When the information is given by telecommunication, unless the applicant or the person acting on the applicant’s behalf already has copies of the order and caution, the peace officer must, as soon as feasible, serve paper copies of those documents in person or serve them by a means of telecommunication that produces an exact copy.

Duty of person acting for applicant

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

Duty of person acting for applicant

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

NOTICE OF REFUSAL

Notice of refusal

21. (1) A designated judge who refuses to make an emergency protection order must inform the applicant or person acting on the applicant’s behalf of the refusal without delay, in person or by telephone or other means of telecommunication that permits the judge and the applicant, or the person acting for the applicant, to speak directly to one another.

Duty of person acting for applicant

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

COMING INTO FORCE

Registration

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: In 1986, the Supreme Court of Canada, in Derrickson v. Derrickson, held that when a marriage breaks down, courts cannot apply provincial or territorial family laws on reserve 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, until the coming into force of the Family Homes on Reserves and Matrimonial Interests or Rights Act (the Act), many of the legal rights and remedies relating to matrimonial real property available to those living off reserve, such as emergency protection orders, were not available to those living on reserve.

Although there is no Supreme Court of Canada case law directly on this point, similar legal concerns were raised about those aspects of orders made under provincial civil family violence protection legislation that touch on reserve lands and structures on reserves, such as family homes.

The Act provides for the issuance of emergency protection orders to allow for temporary exclusive occupation of the family home where there is a need for immediate protection in the case of family violence. It does not, however, provide all of the rules of practice and procedure that designated judges must follow in order to issue the orders.

The Act allows provinces that already have systems in place for issuing emergency protection orders off reserve to adapt existing processes so that a single order can be made under both federal and provincial law simultaneously when addressing situations of family violence on reserve. The Act also allows for First Nations to develop their own matrimonial real property laws and family violence protection laws.

The Emergency Protection Orders Regulations (the Regulations) will set out clear rules of practice and procedures that will be primarily needed in provinces that do not have existing systems for issuing emergency protection orders, specifically New Brunswick and Quebec. Provinces that have existing systems may wish to use some or all of the procedures set out in the federal Regulations. The Regulations will also serve as a guide for provinces that already have systems in place and are adapting them for use on reserve. Furthermore, First Nations that opt to develop their own matrimonial real property laws under the Act will also have a clear model to inform the processes they may set up under their own laws for emergency protection orders. Provinces and relevant territories that have some form of emergency response system in place include the Northwest Territories, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador.

Without the Regulations, law enforcement officials and courts in some jurisdictions would lack the clear process they need to be able to issue and implement emergency protection orders on reserve.

Description: The Emergency Protection Orders Regulations were drafted 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 a marriage or common-law partnership.

The Emergency Protection Orders Regulations are similar to some existing provincial and territorial rules of practice and procedure relating to applications for an emergency protection order in the case of family violence. The Family Homes on Reserves and Matrimonial Interests or Rights Act provides that 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 enables 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. The Regulations contain rules of practice and procedures to help ensure residents on reserves have access to these emergency protections under the Act. Currently, the lack of procedures for orders specific to occupation of the family home means that they cannot be issued or enforced on reserve lands.

The Regulations establish a process that allows applications to be made in person or by telephone, email or fax. They set out the information that must be provided to the presiding judge, require a fast decision and authorize methods of serving documents and notifying the parties. The peace officer that serves an emergency protection order must also serve a document that sets out the rights and obligations of the person served and advises them to seek legal advice.

Cost-benefit statement: The estimated cost of the 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. The price year used in the calculation of costs and benefits was the year 2013.

The benefits resulting from the Regulations will be mainly for those at risk of family violence through the reduction in the occurrence of violence as a result of the ability to enforce all aspects of emergency protection orders on reserve. However, the perpetrators (see footnote 1) of family violence will also benefit through the anticipated reduction in criminal charges and associated court costs that might have resulted were the emergency protection orders not to have been available to prevent further violence. Similarly, provinces and territories are also anticipated to benefit from the Regulations in terms of reduced court costs associated with the prosecution of perpetrators of family violence on reserve. It is anticipated that the number of families at risk of family violence will be reduced due to the enactment of the Regulations. It is estimated that the 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. There are benefits as well that stem from allowing children and their caretakers to remain in their homes and connected to their communities.

The main costs will be incurred by those who commit family violence, because they will need to find alternative living arrangements as a result of being ordered to leave the family home. Costs will also be borne by First Nations communities, whose members may attend court hearings, and by the provinces and territories that will be enforcing the emergency protection orders. Additionally, Aboriginal Affairs and Northern Development Canada, the Royal Canadian Mounted Police and Public Safety Canada will incur costs for the training and education of the parties involved in the implementation of the Regulations, such as judges and law enforcement officers. Aboriginal Affairs and Northern Development Canada will also incur costs associated with informing the population on the rights and protections of the Regulations.

“One-for-One” Rule and small business lens: The “One-for-One” Rule and small business lens do not apply to the Emergency Protection Orders Regulations, since there will be no costs to business.

Domestic and international coordination and cooperation: There will be no impact on domestic and international coordination and cooperation, including trade.

Background

In the Canadian legal system, matrimonial property generally includes property owned by one or both spouses and used for a family purpose. Matrimonial real property can include 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, courts cannot apply provincial or territorial family laws on reserve 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, until the coming into force of the Act, 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 was assented to on June 19, 2013, 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.

Since the first part of the Act came into force on December 16, 2013, First Nations have had the power to enact their own laws regarding the matrimonial interests or rights on reserve under the legislation — what is commonly referred to off reserve as matrimonial real property. Under sections 7 to 11 of the Act, First Nation communities can choose to enact their own matrimonial real property laws. 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. These protections and rights are set out in sections 12 to 52 of the Act. However, these provisional federal rules will only come into force on December 16, 2014, and will apply to First Nations (other than those with certain self-government agreements or some that fall under the First Nations Land Management Act) that have not, by 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 : (i) to First Nations who were placed on the schedule of that Act after June 19, 2013, but do not bring in force a land code or matrimonial real property law under that legislation (or under the Act) before December 16, 2014, or (ii) to 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 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 Act), or 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 for family homes and matrimonial lands located 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 choose not to develop their own laws for some time, or at all.

Since the 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.

Sections 16 to 19 of the Act provide for emergency protection orders in the case of family violence to ensure the immediate protection of a person who is at risk of harm or a property that is at risk of damage. Subsection 47(2) permits competent authorities in the province to make rules applicable to any proceeding under the Act in a court or appellate court. Thus, subsection 47(2) allows provincial and territorial authorities to make rules regulating how applications under the Act may be heard and processed in those courts. The purpose of the Regulations is to set out clear rules of practice and procedures that will be needed in provinces that either do not have existing systems for issuing emergency protection orders, such as New Brunswick, Quebec, and Ontario, or that may choose to apply some or all of the federal rules. The Regulations may also serve as a guide for provinces that have systems in place and are adapting them for use on reserve and to ensure First Nations that opt to develop their own matrimonial real property laws have a clear model to inform the processes they may set up under their own laws for emergency protection orders. Provinces and relevant territories that have some form of emergency response system in place include the Northwest Territories, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador.

Issues

The Act ensures that people living on reserves have similar protections and rights regarding matrimonial real property and family violence protections to those of other people living off reserve. The Criminal Code does provide protections to residents on reserve in instances of family violence. However, there is nothing else in place to specifically enable victims of family violence to safely stay in the family home. While the 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 Act provides for an emergency protection order to be issued under both federal and provincial law at the same time, so that it could be applied on reserve to allow for temporary exclusive occupation of the family home in the case of family violence. It does not, however, provide the rules of practice and procedure that designated judges must follow in order to issue the orders.

The applications for emergency protection orders on reserves could be joined with applications under provincial law and heard within the court systems of the relevant provinces and territories. Alberta, Saskatchewan, Manitoba, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon and the Northwest Territories all have existing domestic violence legislation. (see footnote 2) This type of legislation typically allows spouses who are victims of domestic violence to apply to court for protection orders against violent spouses and to obtain temporary exclusive possession of the family home. British Columbia and Ontario provide for family violence protection orders under Family Law and Child Services legislation. (see footnote 3) The Family Homes on Reserves and Matrimonial Interests or Rights Act allows for the related existing processes in the province or territory to be combined with the federal regime for use on reserve.

Provinces that do not have similar family violence protection legislation and have no established processes for issuing and implementing emergency protection orders may use the federal regulations to establish such a process and allow the Act to be effectively implemented on reserves across the country.

Objectives

The objective of the 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 Act. The 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 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 Emergency Protection Orders Regulations were developed pursuant to the Act. The Act sets out rules regarding matrimonial interests on reserves in the event of a breakdown of a marriage or common-law partnership.

The Emergency Protection Orders Regulations are necessary to ensure equal application of the rights and benefits of the legislation on reserves across Canada, specifically with respect to victims of violence. The Regulations prescribe, amongst other provisions, that an application for an emergency protection order may be made to a designated judge in person or by telecommunication; a person may apply for an emergency protection order on behalf of an applicant; a designated judge can make orders for confidentiality; a designated judge must maintain a legible written record or sound recording of the evidence; the designated judge must make a decision without delay but in any case within 24 hours after the application is made; methods of service for an order; and substituted service can be administered under special circumstance. The Regulations apply when rules of practices and procedure in the province or territory have not been adapted to include the emergency protection orders. A province or territory may use none, all, or part of the federal Regulations for the purposes of carrying out the emergency protection orders when justices of the peace are designated to hear applications.

The federal Emergency Protection Orders Regulations complement 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.

Regulatory and non-regulatory options considered

Two options were available: (1) to maintain the regulatory status quo (or baseline); and (2) to implement the 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 people 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 Emergency Protection Orders Regulations was selected as the best option since it will assist provinces in providing comprehensive protection for individuals on reserves in terms 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 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 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 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 alternative 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 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 used for these cost estimates is from off-reserve sources, adjusted where supportable data exists, to reflect the best estimate of on-reserve realities.

The baseline scenario assumes that without the Emergency Protection Orders Regulations, law enforcement officials and courts across Canada would not have clear processes and procedures for issuing and applying 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 under the federal Act with respect to the family home, nor can a court issue orders or enforcement agency apply them without constitutional concerns. 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 on reserve without triggering constitutional concerns. This puts family abuse victims at higher risk of continued violence or forces such victims to seek alternative accommodations and in some cases to become homeless.

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 by implementing 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 some reports indicate that Aboriginal women may be 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 4) 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 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 attend a criminal trial would cost approximately $1,000, the hotel would cost $100 per night, while meals and incidentals would cost $90.15 (2013 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 $57 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 per year for a total of $1,355,735 over 10 years. With a discount rate of 7%, this amount would be $952,211.

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 per year for a total of $2,907,751 up to 2023. With a discount rate of 7% this amount would be $2,042,282.

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 Regulations.

Therefore, the budget for the communication campaign for the Emergency Protection Orders Regulations would be $31,166 (2013 dollars) for the first two years following the coming into force of the Act. 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 Act.

It is estimated that 70% of these amounts will be required to train officers on the 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 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 5) 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 $100 per night, while meals and incidentals would cost $90.15 per day (based on the 2013 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 per year, which would mean a total of $4,934,875 up to 2023. With a discount rate of 7%, this amount would be $3,466,050.

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 are issued per year, an estimated 97% of orders would proceed to review/hearing (535). Based on statistics from Alberta, the respondent (agent) only attended second hearings 32% of the time and the 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 rehearings 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 $5,059,950.

Cost of alternate living

Individuals with orders against them will be forced to seek alternative living arrangements. This cost of alternate living was evaluated to 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 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 up to 2023. With a discount rate of 7%, this amount would be $68,927,227. 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 provinces 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 based on an 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 implementation 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 $1,638,351 per year for 10 years, for a total amount of $16,383,507. With a discount rate of 7%, the final amount would be $11,507,090. These costs may be significant to provinces and territories with smaller economies.

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 there may have been some question about the authority to act without the 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 fewer resources are involved in alternative housing for one perpetrator of family violence than it would take for a shelter to house a caregiver 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	$0	$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	$1.2M	$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 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 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 could not be incorporated in the Emergency Protection Orders Regulations. The 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 would be consistent with the possibility of alternative dispute resolution or the use of elder councils.

Conference calls to discuss and give an overview of the 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 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 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 Act; reiterating that Aboriginal Affairs and Northern Development Canada was continuing to work towards an implementation plan; and keeping the provinces informed on the status of the Regulations. Although Aboriginal Affairs and Northern Development Canada (the Department) 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 reserves, which would be consistent with any existing provincial training on their own civil family violence protection processes.

One of the comments, however, was incorporated in the 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 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 addition to the consultations with provinces, territories and First Nations organizations, the Emergency Protection Orders Regulations were presented to the Standing Senate Committee on Human Rights at the end of May 2010.

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

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 of the private bar 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 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 once the provinces have decided on their processes and procedures.

One Aboriginal organization provided a number of comments in January 2014, the majority of which concerned broader issues that cannot be accommodated in the Regulations. These comments concerned inherent right to self-government, criticism of perceived provincial incorporation by reference, a desire for interim First Nations emergency protection orders regulations, potential lack of experience of designated judges concerning First Nations issues, First Nations authority, substituted service, indigenous language translation, and access to applications. The majority of these issues are extraneous to the content of the Regulations and therefore cannot be addressed. However, the comment regarding substituted service was addressed. Concerns raised by this organization, also shared by some provinces and the Royal Canadian Mounted Police, was that public posting of emergency protection orders as a means of substituted service could cause danger to affected individuals. As a result, public posting as a method of substituted service was removed.

Letters were sent to the provinces and national Aboriginal organizations on April 11, 2014, informing them that the Regulations would be available for public consultation as of April 12, 2014. Information on the then proposed Regulations and links to the Canada Gazette, Part I, prepublished material was posted on the Aboriginal Affairs and Northern Development Canada Web site and social media sites.

The Regulations were prepublished in Part I of the Canada Gazette on April 12, 2014, followed by a 30-day public comment period during which comments were received from some provinces and territories, some Aboriginal organizations, and the Royal Canadian Mounted Police. A number of comments were also received after the 30-day public consultation period from organizations and provinces who requested more time to provide feedback. Overall, 13 stakeholders provided comments during and after the 30-day public consultation period. Many of the provinces and territories with emergency protection orders regimes and those without stated generally that the Act and Regulations were not readily compatible with their systems. Further, they were concerned with the lack of sufficient resources to effectively implement the new statute and train court personnel, the availability of judicial resources and court staff outside business hours, the requirement to adapt existing filing procedures and methods, and the development of communication materials. One province noted that it is conceivable that costs may increase due to the need to provide enhanced resources to victims and perpetrators of intimate partner violence on reserves as a result of this legislation. Some provinces were concerned that the differences between applications for persons living off-reserve, which would be under provincial legislation only, and for those persons living on-reserve, which would be under both provincial and federal legislation simultaneously, would create confusion and inefficiencies. One province wished for more clarity as to the possibility that parts of the federal Regulations could be relied on and that other parts could be displaced by its own rules. This suggestion was incorporated.

Another province also stated that applications made by telephone or other telecommunication methods might be a resource challenge. The lack of buy-in, potentially limited resources, and lack of support may compromise implementation, although given that the emergency protection orders provisions are contained within a federal statute of Canada, it is anticipated that affected provinces and territories will comply with its enactment. The Government is supporting the implementation of the Act and the Regulations with training for Royal Canadian Mounted Police officers and police officers on reserves, and education materials for legal experts across Canada. The Department is maintaining ongoing communications with provincial representatives to assist with implementation.

As proposed by one province, the Regulations were amended to clarify that the obligation to provide information, as specified in section 6, only applies where the information is known to the applicant; to allow for a sound recording of a proceeding in addition to a written record of a proceeding; and to indicate, in section 17, that where the required information is not already contained in the order to be served, the peace officer must ensure the information is provided to the respondent. Although verification of a sound recording is not required, the Regulations do stipulate that verification of oral testimony is required.

The province also proposed that given section 19 reads as an exhaustive list with respect to substituted service, that a clause be added to allow for any method the judge considers appropriate, and, with respect to subsection 20(5), that wording be added to allow the person acting for the applicant to not give copies of the order and caution to the applicant “if he or she already has copies of those documents.” These suggestions for amendments were not incorporated. With respect to section 19, the suggestion was deemed unnecessary given the Regulations provide that the court may order substituted service of the respondent or a specified person on the terms and using the method it considers appropriate. The suggestion regarding subsection 20(5) was not incorporated because the reasons for preserving at all times this duty on a person acting for an applicant outweigh any potential benefits associated with not providing copies when the applicant already has copies. It ensures that the victim is aware that the order has been served and that protection is in place so that they do not unknowingly put their safety at risk. The proposed amendment for exclusion of members of the public from a hearing to ensure confidentiality was not incorporated because it was already covered in section 19 of the Act. The suggestion to remove the provision which requires a designated judge who refuses to make an emergency protection order to prepare a written decision that sets out the reasons for refusal was not accommodated. This provision ensures that in the event an application is denied, there remains the possibility of later scrutiny by the body responsible for overseeing the decision-maker. The suggestion to add that an “other person,” as set out in subsection 16(3), could also apply for an order for substituted service was not incorporated, as the Royal Canadian Mounted Police raised safety concerns should substituted service be ordered without the involvement of the peace officer.

Another province also stated that the estimated costs for implementing the legislation are significant for those provinces with a limited budget for their court system. It noted concerns regarding the safety of officers such as sheriffs who may be required to serve emergency protection orders in First Nations communities and who are not armed and may not have the same level of training with respect to First Nations’ cultural sensitivity or family violence dynamics as the Royal Canadian Mounted Police and on-reserve police officers. It is expected that the police officers serving in First Nations communities would serve emergency protection orders, or would be able to assist/escort a sheriff. The province also had reservations regarding substituted service, specifically the proposal to allow for service by publicly posting copies of the order or providing it to a Band Council member or elder which, they argued, could create safety risks for the applicant and any witnesses or vulnerable persons associated with the emergency protection order application. The option for public posting has been deleted from the Regulations. The option to provide the order to a Band Council member or elder or other relevant adult still exists, but they have to agree and be able to serve the order and convey its contents to the respondent without delay.

The Royal Canadian Mounted Police recognizes that courts may choose to assign responsibility for service to a person other than a peace officer. The Royal Canadian Mounted Police’s previously expressed concerns remain with respect to public and officer safety if someone other than a police officer is assigned to effect service in what is, per se, a violent or potentially violent situation. Royal Canadian Mounted Police policy directs that when one of its members is assigned responsibility for effecting service, responsibility for service will remain with the Royal Canadian Mounted Police. Other provinces commented on the content of the legislation rather than the Regulations and stated that the Regulations seem unnecessary, as each provincial and territorial system already has existing processes that address the making of orders by its courts, including those needed on an urgent basis. The Government maintains that the Regulations are only intended for the provinces that do not have existing procedures and processes in place and for those that wish to incorporate elements of the federal Regulations alongside provincial systems. Another province also stated that the availability of federal funding for legal aid services to people on First Nations reserves should also be reviewed to ensure that people have legal assistance and representation to apply for legal remedies under the Act.

One First Nations organization stated that the Regulatory Impact Analysis Statement did not contain enough qualitative impacts. Furthermore, the organization expressed concerns that First Nations communities and front-line officials will be unable to implement the Regulations due to insufficient resources. They also expressed concern regarding jurisdictional confusion that could arise and which may impede implementation. It was also suggested that the applicant may not be able to collect all the detailed information required under the Regulations. Furthermore, the organization argued that the restriction to common-law partner and spouse in the Act is limiting, as violence in First Nations communities is also family-related. The organization also noted concerns with privacy of the defendant and lack of access to resources to mitigate future violence. They argued that as there is a shortage of housing in First Nations communities, it will be difficult for defendants to acquire adequate housing in the event an order is issued. The Government has noted these concerns and remains committed to successful implementation of the legislation, which includes a public awareness campaign, the establishment of a Centre of Excellence for Matrimonial Real Property, and training and education for front-line service providers across Canada, including Royal Canadian Mounted Police officers, police officers operating on reserves, and legal experts.

An individual from a First Nations community also provided comments and stated that the 30-day comment period was insufficient and that the First Nation faces difficulties when nonmembers force the community to incur significant litigation costs when non-members do not have lawful claim to the individual lot holdings. The individual also stated that the Regulatory Impact Analysis Statement contains gender bias in favour of women, as in some cases allegations made by women are false. This individual also requested that a future iteration of the Regulations include a clause that ensures the preservation of member rights to use and occupy lands as defined by the Indian Act. These comments were noted but were deemed outside the scope of the objective of the Regulations. Furthermore, section 5 of the Act provides certainty of title. It was confirmed that the Regulatory Impact Analysis Statement was gender neutral, in compliance with Aboriginal Affairs and Northern Development Canada’s Gender-based Analysis Policy.

Regulatory cooperation

The Government of Canada consulted with relevant provinces and territories to ensure they were aware of the new responsibilities associated with the Act and its accompanying Regulations. Aboriginal Affairs and Northern Development Canada recognized that while the federal regime cannot align perfectly with existing systems in all provinces, the legislation and the Regulations have been developed with the objective of balancing the need for a viable and consistent system on reserves across Canada with the need for harmony with existing provincial regimes. Further, the Government of Canada sought to minimize potential confusion and upfront costs in provinces and territories that already have systems in place by enabling them to adapt their existing policies and procedures so that they could apply to their own Act and the federal law in a single application.

Rationale

The estimated cost of the 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 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 provisional federal rules in the Act and the Emergency Protection Orders Regulations are enacted, enforcement officers will have additional powers to take action to prevent incidences of family violence on reserves. In addition, the Regulations will allow children and their caregivers to remain in their homes and connected to their communities. They 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 Emergency Protection Orders Regulations, drafted in accordance with the 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 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 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 implementation support for the Act and its 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 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 Emergency Protection Orders Regulations. Front-line Royal Canadian Mounted Police members will be trained to understand the provisional federal rules as they apply to First Nations communities. They will also acquire an understanding of related processes and procedures pursuant to the law to address situations that may arise on reserves as a result of a relationship breakdown. The Royal Canadian Mounted Police is developing and delivering training on the legislation that will encompass an online course available to all Royal Canadian Mounted Police employees in each province or territory and portable reference material for the use of front-line officers in real-time situations. Public Safety Canada will facilitate, through grants and contribution funding, 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 also created a Centre of Excellence for Matrimonial Real Property to assist with the implementation of the Act. 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 provides information to First Nations to assist them in developing their own matrimonial real property law; and to increase awareness of the protections and rights available to individuals and families living on reserves in the provisional federal rules and the Emergency Protection Orders Regulations, once in force. The Centre of Excellence for Matrimonial Real Property is the organization designated by the Minister of Indian Affairs and Northern Development to receive copies of First Nations’ community-specific matrimonial real property laws.

Contact

Kris Johnson
Senior Director
Lands Modernization Directorate
Aboriginal Affairs and Northern Development Canada
Telephone: 819-994-7311
Fax: 819-994-5697
Email: Kris.Johnson@aadnc-aandc.gc.ca

Footnote a
S.C. 2013, c. 20
Footnote b
S.C. 2013, c. 20
Footnote 1
The term “perpetrator” is used in a number of studies used to inform the cost-benefit analysis and Regulatory Impact Analysis Statement.
Footnote 2
http://www.justice.gc.ca/eng/cj-jp/fv-vf/laws-lois.html
Footnote 3
http://www.justice.gc.ca/eng/cj-jp/fv-vf/laws-lois.html
Footnote 4
Tutty, Leslie, Koshan, Jennifer, Jesso, Deborah, Nixon, Kendra, Alberta’s Protection Against Family Violence Act: A Summative Evaluation, Final Report, May 2005, RESOLVE Alberta, University of Calgary.
Footnote 5
It is assumed that there will be minimal costs with the issuance of the initial order; thus, only the costs associated with the review by the Court are calculated.