Domestic Violence and Stalking Regulation

Domestic Violence and Stalking Regulation, M.R. 117/99 The Domestic Violence and Stalking Act , C.C.S.M. c. D93 Regulation 117/99 Registered July 9, 1999 bilingual version (HTML) Table of Contents Section DEFINITIONS 1 Definitions APPLICATIONS FOR PROTECTION ORDERS 2 Content of application 3 Evidence in support of application 4 Identifying information of lawyer, peace officer or designated person 5 Information to be provided re service 6 Specification of person for service 7 Minors 8 Persons with committee or substitute decision maker 9 Lawyer not required for certain matters 10 Submitting telecommunication documents to JP and court 11 Giving documents to subject 12 JP to give order to lawyer, peace officer or designated person 13 JP to give documents to subject 14 JP to serve documents on certain minors 15 Peace officer to serve order on respondent 15.1 Notice by peace officer 16 Respondent to have access to evidence 17 Evidence on application to set aside SEIZURE OF PROPERTY 18 Seizure of weapons delivered to police 19 Content of court order to seize property 20 Sheriff and police to give notice of seizure 21 Content of notice of seizure 22 Police to give notice to firearms officer 23 Police to transfer property to sheriff 24 Sheriff to publish notice in newspaper 25 Application for return of property 26 Disposition of seized property AUTHORIZED AGENCIES, ORGANIZATIONS AND SERVICE PROVIDERS 26.1 Family dispute resolution activities NOTICE OF ORDERS RELATING TO THE HIGHWAY TRAFFIC ACT 27 Certain forms to be used REVIEW 28 Review and recommendation 29 Coming into force Schedule DEFINITIONS Definitions 1 In this regulation, "Act" means The Domestic Violence and Stalking Act ; («  Loi ») "application" means an application for a protection order; (« requête ») "designated person" means a person designated by the minister under subsection 4(2) of the Act; (« personne désignée ») "sheriff" means a person appointed as a sheriff under Part 3 of The Public Service Act ; (« shérif ») "weapon" means a weapon of any kind and includes a firearm, ammunition and explosive substance. (« arme ») M.R. 157/2005 ; 91/2023 APPLICATIONS FOR PROTECTION ORDERS Content of application for protection order 2 An application must be made in writing and contain the following information: (a) the name of the subject; (b) the name of the respondent; (c) if the subject has a lawyer for the purpose of the application, the lawyer's name; (d) a statement that the subject requests a protection order under the Act; (e) the subject's consent to the application, if the application is submitted by a lawyer, peace officer or a designated person; (f) the name and contact information of any person who assists with the completion of the application. M.R. 157/2005 Evidence required to support application 3(1) An application must be supported by a sworn document or sworn testimony that establishes the following: (a) the nature of the subject's relationship to the respondent; (b) evidence that domestic violence or stalking is occuring or has occurred; (c) the subject's belief that domestic violence or stalking will continue or resume, unless the subject is mentally incompetent or a minor and subsection 6(2) of the Act (certain persons deemed to have belief) applies; (d) the subject's fear for his or her own safety and the basis for that fear, if the application is based on stalking, unless the subject is mentally incompetent or a minor and subsection 2(4) of the Act (certain persons deemed to have fear) applies; (d.1) the dates of birth of any minor children for whom protective relief is sought; (e) the details of any agreement or court order to which the subject and respondent are parties; (f) the details of any ongoing court proceedings between the parties, whether or not those proceedings have resulted in any court orders, including any court proceedings relating to custody of or access to any children of the parties; (g) whether the applicant has made any previous application for a protection order that has not resulted in an order and the date when that application was made. M.R. 157/2005 Additional requirements if order expired 3(1.1) In addition to the requirements of subsection (1), a new application that is made when a protection order has expired or will expire within three months of the date of application must be supported by (a) a copy of the protection order that has expired or will expire; and (b) a sworn document or sworn testimony that sets out the subject's evidence that there is a continuing need for protection. M.R. 157/2005 Oral evidence to be recorded 3(2) Oral evidence adduced in support of an application for a protection order must be recorded. Identifying information of lawyer, peace officer or designated person 4 A lawyer, peace officer or designated person who submits an application must provide any identifying information requested by the designated justice of the peace hearing the application, which may include the name and business or employment address of the person submitting the application, and any other information required to identify or contact him or her. M.R. 157/2005 Requested information to be provided re service 5 On the request of a designated justice of the peace, a person making or submitting an application must provide any information he or she has that could assist in serving documents on the subject or respondent. Subject may specify person to accept service 6 A subject may specify to a designated justice of the peace that another person may receive documents on behalf of the subject, and when a subject so specifies, service on the specified person is deemed to be service on the subject. Application on behalf of a minor 7(1) If the subject is a minor, an adult person may make an application on behalf of the subject. Evidence required to support application 7(2) An application made under subsection (1) must be supported by a sworn document or sworn testimony that sets out the following, in addition to the requirements of subsection 3(1): (a) the subject's date of birth; (b) the name of the person making the application, and his or her relationship to the subject; (c) the consent of the person making the application to act on behalf of the subject; (d) a statement that the person making the application has no interest adverse to that of the subject; (e) a statement that the person making the application is aware that he or she could be required to pay personally any costs awarded against the person or the subject. Application by committee or substitute decision maker 8 An application made on behalf of a subject (a) by a committee appointed under The Mental Health Act; or (b) by a substitute decision maker for personal care or a substitute decision maker for property appointed under The Adults Living with an Intellectual Disability Act ; with authority to make an application under this Act, must be supported by a sworn document or sworn testimony that sets out, in addition to the requirements of subsection 3(1), particulars of the appointment and authority. M.R. 91/2023 Lawyer not required by person acting for subject 9 A person who makes an application to a designated justice of the peace for a protection order on behalf of a subject may do so without retaining and instructing a lawyer. Documents to be Provided by Certain Persons Submitting telecommunication documents to JP and court 10 A lawyer, peace officer or designated person submitting an application by telecommunication shall (a) provide a copy of the application and any supporting documents to the designated justice of the peace by telephone transmission of a facsimile or by delivery in another way specified by the justice; and (b) deliver the original copy of the application and supporting documents to a court office specified by the designated justice of the peace who hears the application. M.R. 157/2005 Giving documents to subject 11(1) A lawyer, peace officer or designated person who submits an application by telecommunication, or in person when the subject is not present, shall give the subject a copy of the application, supporting documents and any protection order that is granted as soon as practicable after the application is determined. M.R. 157/2005 Giving documents to person applying for subject 11(2) Despite subsection (1), when an application is made by a person on behalf of a subject referred to in section 7 (minor) or 8 (person with committee or substitute decision maker), the lawyer, peace officer or designated person shall give the documents referred to in subsection (1) to the person. M.R. 157/2005 JP to give order to lawyer, peace officer or designated person 12 A designated justice of the peace who grants a protection order on a telecommunications application shall ensure that a copy of the order is promptly given to the lawyer, peace officer or designated person who submitted the application by delivering it to him or her personally or by electronic mail or the telephone transmission of a facsimile. M.R. 157/2005 JP to give documents to subject applying in person 13 When a subject applies for a protection order in person or a lawyer, peace officer or designated person submits an application in the subject's presence, the designated justice of the peace shall give the subject a copy of the application, supporting documents and any protection order that is granted. M.R. 157/2005 JP to serve documents on certain minors 14 A designated justice of the peace who grants a protection order in respect of a subject who is a minor 16 years of age or older shall serve the subject, or shall arrange for the subject to be served, with a copy of the application, supporting documents and any protection order that is granted. Service of protection order on respondent 15(1) A peace officer who receives a protection order from a designated justice of the peace shall serve a copy of the order and the information sheet referred to in subsection (2) on the respondent (a) personally; or (b) if the respondent cannot be conveniently found, by leaving the documents with an adult at the respondent's last known home, business or employment address, other than the home, business or employment address of the subject, together with a notice stating that the documents should be forwarded or given to the respondent as soon as possible; and provide proof of service satisfactory to the court. Content of information sheet 15(2) The information sheet referred to in subsection (1) must set out the following: (a) information respecting the right of the respondent to apply to the court under subsection 11(1) (application to set aside protection order) of the Act and the time limit for doing so; (b) a statement that an application by the respondent to set aside the order does not stay the operation of the order; (c) information as to how the respondent can gain access to the evidence that was given in support of the application; (d) general information about the penalties for failing to comply with the order. Notice by peace officer 15.1 For the purpose of section 17 of the Act, a peace officer may give notice of a protection order to a respondent by indicating its terms to him or her or by reading verbatim the provisions of the protection order to the respondent. M.R. 157/2005 Access to Evidence Respondent to have access to evidence 16 Upon the request of a respondent against whom a protection order has been made, the court must provide him or her with access to the application, and the evidence that was received in support of it. Considering evidence on application to set aside 17 On hearing an application to set aside a protection order, a judge of the court may, on considering the evidence that was before the designated justice of the peace, consider it in the form in which it was recorded. SEIZURE OF PROPERTY Seizure of weapons delivered to police officers 18 A weapon that is delivered to a police officer pursuant to a protection order or prevention order is deemed to be seized when the officer takes custody of it. Content of order authorizing seizure of weapon or property used in furtherance 19 A protection order that contains a provision under clause 7(1)⁠(g) (weapons) or a prevention order that contains a provision under clause 14(1)⁠(h) (weapons) or (l) (property used in furtherance) of the Act (a) must be directed to a sheriff or police officer or, in the case of a weapon, to a police officer; and (b) must identify as specifically as possible the property to be delivered up or seized and its location, if known; and must be accompanied by a notice of seizure form. Sheriff and police officer to give notice of seizure 20 A sheriff or police officer who seizes property under a protection order or prevention order shall (a) if the respondent is present at the time of the seizure, give the respondent a notice of seizure; or (b) if the respondent is not present at the time of the seizure, leave a copy of the notice on the premises at which the seizure is made and at the respondent's last known home, business or employment address, other than the home, business or employment address of the subject, together with a notice stating that the documents should be forwarded or given to the respondent as soon as possible. Content of notice of seizure 21 A notice of seizure must contain (a) a description of the property seized; (b) a direction that the respondent advise any third party who has an ownership interest in the property that the property has been seized; (c) the name and address of the person who will have custody of the property; (d) information respecting the right of the respondent to apply to the court under subsection 11(1) (application to set aside protection order) or subsection 19(1) (application to vary or revoke prevention order) of the Act; (e) a statement that, unless the court orders otherwise, the property can be disposed of after the later of the following: (i) 45 days after the respondent is served with, or has notice of, the protection order or prevention order, (ii) where, within the time referred to in subclause (i), the respondent applies to the court under subsection 11(1) (application to set aside protection order) or subsection 19(1) (application to vary or revoke prevention order) of the Act, the day the court determines the application. Police officers to give notice to firearms officer 22 A police officer who seizes a weapon pursuant to a protection order or prevention order shall notify a person designated under the Firearms Act (Canada) as a firearms officer or chief firearms officer for Manitoba of the seizure. Police to transfer custody of property to sheriff 23 A police officer who seizes property other than a weapon shall transfer custody of it to a sheriff as soon as practicable after seizing it. Notice to be published re property 24(1) Upon seizing or receiving property or custody of property other than a weapon, the sheriff shall, subject to subsection 21(1) (court may ban publication of certain information) of the Act, forthwith publish in a newspaper having general circulation in the area in which the property was seized a notice containing (a) a general description of the property; (b) the name of the person from whom the property was seized; (c) the name and address of the person having custody of the property; and (d) a statement that the property may be disposed of without further notice, in accordance with the Act and regulations made under the Act. Notice to be served on persons claiming interest 24(2) The sheriff shall serve a copy of the notice referred to in subsection (1) on any person who claims an ownership interest in the property or has a security interest in the property registered under The Personal Property Security Act . Serving document on person claiming interest 24(3) Service under subsection (2) may be effected as follows: (a) in the case of a person who claims an ownership interest in the property, personally or by sending a copy by ordinary mail to the last known address of the person, in which case the notice is deemed to be served on the fifth day after the day of mailing; (b) in the case of a person who claims a security interest in the property, personally or by sending a copy by ordinary mail to the address of the person set out in the financing statement under The Personal Property Security Act , in which case the notice is deemed to be served on the fifth day after the day of mailing. Application for return of property 25(1) A third party who claims an ownership interest or security interest in property seized under a protection order or prevention order may, before the expiry of the time periods referred to in clause 21(e), apply to the court, on notice to the parties to the order and to the person having custody of the property, for an order that the property be returned to the owner or released to the person with a security interest. Court may impose terms and conditions 25(2) On making an order for the return or release of property, the court may impose any term or condition the court considers appropriate to ensure the safety of the subject or remedy the domestic violence or stalking. Disposition of seized property 26(1) Unless the court orders otherwise, the sheriff or police officer may dispose of seized property (a) after the later of the time periods set out in clause 21(e); or (b) where the sheriff or police officer has received notice of an application under subsection 25(1), the day the court determines the matter; whichever is the later. Sheriff may sell property 26(2) The sheriff may sell the property in such manner as he or she considers will realize the best price that can be obtained, and any money realized from the sale shall be applied as follows: (a) firstly, to pay the costs relating to the seizure, storage and disposition of the property; (b) secondly, to pay expenses relating to any repair of the property that the sheriff considers necessary to prepare it for sale; (c) thirdly, to satisfy the interest of any person who has a security interest in the property under The Personal Property Security Act ; (d) fourthly, to pay any surplus to the person who was, immediately before the sale, the lawful owner of the property or to any other person entitled to it. Prohibition on sale 26(3) The sheriff shall not sell or otherwise return the property to the respondent. Release to institution with security interest 26(4) Despite subsection (1), the sheriff may at any time release the property to a financial institution that has a security interest in the property under The Personal Property Security Act , if the institution files with the court an undertaking (a) not to return the property to the respondent; and (b) upon disposition of the property, to pay the expenses of the sheriff relating to the seizure, storage and repair of the property, and transferring it to the institution. AUTHORIZED AGENCIES, ORGANIZATIONS AND SERVICE PROVIDERS Family dispute resolution activities 26.1(1) For the purpose of subclause 7(1)⁠(c.1)⁠(v) of the Act, a protection order may include a provision that permits the respondent to attend family dispute resolution activities while the subject is present at the premises of the following: (a) the Family Resolution Service Branch of the Manitoba Department of Justice; (b) Mediation Services: A Community Resource for Conflict Resolution Inc. Supervised contact 26.1(2) For the purpose of subclause 7(1)⁠(c.1)⁠(vi) of the Act, a protection order may include a provision that permits the respondent to attend supervised parenting time, contact or access, while the subject is present, at the premises of the following: (a) Winnipeg Children's Access Agency; (b) Brandon Access/Exchange Service. Supervised transfers and exchanges 26.1(3) For the purpose of subclause 7(1)⁠(c.1)⁠(vii) of the Act, a protection order may include a provision that permits the respondent to attend supervised child transfers or exchanges, while the subject is present, at the premises of the following: (a) Winnipeg Children's Access Agency; (b) Brandon Access/Exchange Service. M.R. 91/2023 ; 76/2024 NOTICE OF ORDERS RELATING TO THE HIGHWAY TRAFFIC ACT Forms to be used to give notice re H.T. Act 27 The forms in the Schedule must be used to give notice of an order made under section 15 (suspension under The Highway Traffic Act ) of the Act. REVIEW Review and recommendation 28 Not later than January 1, 2005, the minister shall (a) review the effectiveness of the operation of this regulation after consulting such persons affected by the regulation as the minister considers appropriate; and (b) if the minister considers it advisable, recommend to the Lieutenant Governor in Council that the regulation be amended or repealed. Coming into force 29 This regulation comes into force on the day The Domestic Violence and Stalking Prevention, Protection and Compensation Act, S.M. 1998, chapter 41, comes into force. SCHEDULE Form 1 Notice of suspension and disqualification Form 2 Notice of refusal to issue or renew licence Form 3 Notice of termination of suspension or refusal to issue or renew