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Plan for action.

In my last column, I outlined some of the Alberta Law Reform Institute's recommendations for improving restraining orders. In its Report No. 74, Protection Against Domestic Abuse, the Institute recommended expanding the class of victims and the abusive behaviours the law could protect them from. The Institute also made many recommendations to reform the remedy itself. Traditionally, the main legal response to domestic violence was a no-contact restraining order. This prohibited the respondent from contacting the claimant for some time (often three months). Victims of domestic abuse complained that this order alone did not meet their needs. Plus, with the recognition that actions other than physical violence can still be abusive, the law required a broader remedy. Here's how the Institute wants the new protection order to work.

Basic No-Contact Provision

The basic no-contact provision stays the same. There cannot be any communication, directly or indirectly, between the claimant and the respondent. However, if the claimant and respondent need to talk to fulfil parenting duties or discuss reconciliation, the order can include specific "safe contact" provisions. Where no time is specified, the order remains in effect for three years. In appropriate circumstances, the court can grant a protection order that does not expire.

The Residence

As you might expect, much domestic abuse occurs at home. The Institute recommends giving considerable discretion to the court when dealing with the residence. The order can stop the respondent from coming to the claimant's residence, even if the residence is solely-owned by the respondent. The court can order the respondent forcibly removed from the home. If required to keep the claimant in the home, the court can postpone the respondent's ownership rights in the residence for up to three months. The court can also say who has financial responsibility for the home and who must manage and maintain the residence. Unless otherwise specified, the provisions relating to the home remain in effect for three months. If the claimant needs help, the police can obtain a warrant to allow entry and search of the residence.

Other Property

The claimant can seek temporary possession of specific personal property. Either party can request a police escort to supervise the removal of personal possessions from the residence. The court can order the respondent not to damage or deal with the claimant's property. The respondent's firearms are subject to seizure and storage if they have been used or threatened to be used in the abusive activity.

Other Places and Persons

The court can restrain the respondent from going to any specific place that the claimant regularly attends. The court can also stop the respondent from contacting the claimant's family members, employees, or co-workers to protect the claimant.

Finances

The court can order the respondent to pay money to the claimant if the claimant suffered financial hardship through the respondent's actions or the resulting separation. The court may hold the respondent responsible for expenses directly resulting from the abusive behaviour, such as medical, dental, or counselling costs. The claimant can seek reimbursement of legal costs and the costs of moving. If the claimant temporarily cannot work, the court can order the respondent to replace the lost income. This financial relief is available even if the respondent has no legal duty to support the claimant. These payments should be collectible through the maintenance enforcement program.

When Children are Involved

The no-contact provision can extend to include children if they are at risk; alternatively, the court can order supervised contact or set out the access arrangements.

Procedure

Provincial court should be able to grant protection orders. In an emergency, protection orders should be available by telephone. In non-emergency situations, the claimant should be able to make an application for custody or access.

Breaching the No-Contact Provisions

Presently, most judges treat breaches of restraining orders as civil contempt. The Institute recommends that the police prosecute a breach of a protection order (except for the non-payment of money) as a criminal offence under the Criminal Code. This creates an indictable (serious) offence punishable by up to two years' imprisonment. It gives the police the power to arrest someone if they have reasonable and probable grounds to believe an order has been or is about to be breached.

Overcoming domestic abuse is a complex problem that requires a multi-faceted solution. These recommendations for reform go a long way towards guiding the courts in the legal response to the problem. Now it is up to the politicians to put the plan into effective action.

Rosemarie Boll is a lawyer with the firm of Bubel Boll & Sorenson in Edmonton, Alberta.
COPYRIGHT 1997 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997 Gale, Cengage Learning. All rights reserved.

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Author:Boll, Rosemarie
Publication:LawNow
Date:Oct 1, 1997
Words:763
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