A A A

Fourth Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 19

THE PROTECTION FROM DOMESTIC VIOLENCE AND BEST INTERESTS OF CHILDREN ACT (FAMILY LAW STATUTES AMENDED)


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE CHILD CUSTODY ENFORCEMENT ACT

C.C.S.M. c. C360 amended

1           The Child Custody Enforcement Act is amended by this Part.

2(1)        The following is added after subsection 13(1):

Service of application

13(1.1)     An application under subsection (1) must be served on the person or public body that holds the record sought by the applicant

(a) personally; or

(b) by sending it by regular mail, in which case it is deemed to be served on the fifth day after the day it is mailed.

2(2)        The following is added after subsection 13(2):

Assessing risk of domestic violence or stalking

13(2.1)     Before giving the particulars of a person's address to an applicant or other person under subsection (1), the court shall consider whether giving the particulars of a person's address could expose that person to a risk of domestic violence or stalking.

2(3)        The following is added after subsection 13(4):

Definitions

13(5)       In subsection (2.1),

"domestic violence" means domestic violence within the meaning of subsection 2(1.1) of The Domestic Violence and Stalking Act that is caused by an act or omission of a person described in subsection 2(1) of that Act; (« violence familiale »)

"stalking" has the same meaning as in subsections 2(2) and (3) of The Domestic Violence and Stalking Act. (« harcèlement criminel »)

PART 2

THE DOMESTIC VIOLENCE

AND STALKING ACT

C.C.S.M. c. D93 amended

3           The Domestic Violence and Stalking Act is amended by this Part.

4(1)        The following is added after clause 7(1)(c):

(c.1) as an exception to a protection order under either clause (b) or (c), a provision that permits the respondent to attend, where the subject is present,

(i) any court proceeding in which the respondent is a party or an accused person, or

(ii) mediation or an assessment, investigation or evaluation in relation to custody, access or a related family matter, that has been ordered by any court;

4(2)        The following is added after subsection 7(1):

Additional provisions restricting respondent

7(1.1)      An order under clause (1)(c.1) must include a provision requiring the respondent to do the following while attending a proceeding referred to in that clause:

(a) remain at least two metres away from the subject at all times;

(b) direct all communications to the judge, master or other officer of the court in the case of a court proceeding, or to the mediator, assessor, investigator or evaluator;

(c) refrain from communicating with the subject;

(d) not remain in any location where the respondent would be alone with the subject.

Order of judge or master re respondent's conduct

7(1.2)      Despite subsection (1.1), the presiding judge or master in a court proceeding where both the respondent and subject are present may make a different order restricting the respondent's conduct as the presiding judge or master considers appropriate.

PART 3

THE FAMILY MAINTENANCE ACT

C.C.S.M. c. F20 amended

5           The Family Maintenance Act is amended by this Part.

6           Section 1 is amended by adding the following definitions:

"domestic violence" means domestic violence within the meaning of subsection 2(1.1) of The Domestic Violence and Stalking Act that is caused by an act or omission of a person described in subsection 2(1) of that Act; (« violence familiale »)

"stalking" has the same meaning as in subsections 2(2) and (3) of The Domestic Violence and Stalking Act. (« harcèlement criminel »)

7(1)        The following is added after subsection 39(2):

Best interests of child

39(2.1)     In determining a child's best interests in an application under subsection (2) or section 46, the court shall consider all matters relevant to the best interests of the child including, but not limited to, the following:

(a) the nature, quality and stability of the relationship between

(i) the child and each parent seeking custody or access, and

(ii) the child and other significant individuals in the child's life;

(b) the child's physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child's age and stage of development;

(c) the impact on the child of any domestic violence, including consideration of

(i) the safety of the child and other family and household members who care for the child,

(ii) the child's general well-being,

(iii) whether the parent who engaged in the domestic violence is able to care for and meet the needs of the child, and

(iv) the appropriateness of making an order that would require the parents to co-operate on issues affecting the child;

(d) the ability and willingness of each parent to communicate and co-operate on issues affecting the child;

(e) the willingness of each parent seeking custody to facilitate the relationship between the child and the other parent;

(f) any special needs of the child, including special needs for care, treatment or education;

(g) the proposed plan of care for the child, including the capacity of the parent seeking custody or access to provide a safe home, adequate food, clothing and medical care for the child;

(h) the history of the care arrangements for the child;

(i) the effect on the child of any disruption of the child's sense of continuity;

(j) the views and preferences of the child, where the court considers it appropriate to ascertain them;

(k) the child's cultural, linguistic, religious and spiritual upbringing and heritage.

7(2)        Subsection 39(3) is amended by striking out "In considering an application under this section" and substituting "Subject to clause (2.1)(c), in considering an application under this section or section 46".

8           The following is added after subsection 49(1):

Service of application

49(1.1)     An application under subsection (1) must be served on the person, the government or agency of the government that holds the record sought by the applicant

(a) personally; or

(b) by sending it by regular mail, in which case it is deemed to be served on the fifth day after the day it is mailed.

Assessing risk of domestic violence or stalking

49(1.2)     Before giving the particulars of a person's whereabouts to an applicant or other person under subsection (1), the judge or master shall consider whether giving the particulars of a person's whereabouts could expose that person to a risk of domestic violence or stalking.

PART 4

COMING INTO FORCE

Coming into force

9           This Act comes into force four months after the day it receives royal assent.

Explanatory Note

This Bill amends several family law Acts in relation to the following areas:

Domestic Violence Protection

The Child Custody Enforcement Act and The Family Maintenance Act are amended to require courts to assess the risk of domestic violence or stalking before disclosing a person's address to enforce a custody order or to apply for or enforce an order for maintenance or custody. (Part 1 and sections 6 and 8 in Part 3)

The Domestic Violence and Stalking Act is amended to create an exception to allow parties with a protection order to both attend court or court-ordered proceedings, such as mediation, but with specific restrictions imposed on the person against whom the protection order is made. (Part 2)

Best Interests of Children in Custody and Access Matters

Specific criteria are added to The Family Maintenance Act that the court must consider when determining a child's best interests in a custody or access application or variation proceeding. (Section 7 in Part 3)