New laws concerning domestic violence cases are flawed, Moncton lawyer says

Emergency protection orders for victims of domestic abuse that don't require a hearing or evidence are frequently being overturned, a New Brunswick lawyer says.

"The notice of a hearing and the right to be heard is really one of the fundamental criteria for our judicial system … to have both perspectives," said Tracy Peters, who is a partner at Tandem family law in Moncton.

"Once the other side has an opportunity to be heard and to tell their perspective, we're seeing a lot of them [orders overturned]."

The Intimate Partner Violence Intervention Act, which took effect May 1, allows victims of intimate partner violence to apply for sole custody of children and other protections, without a hearing or sworn evidence and without notification to the other party.

The point of the orders is to allow an initial bypass of the long, slow court processes that can sometimes force victims to stay in a dangerous situation.

Since May, Geoffrey Downey, a spokesperson with the Department of Justice and Public Safety, says 125 orders have been requested — 96 were granted and 29 were denied.

Of the 96 orders which were granted, six were set aside after a hearing.

But Kristal LeBlanc, executive director of the Beausejour Family Crisis Resource Centre in Shediac, said the new act is an opportunity for victims to get safety right away instead of waiting on a delayed process.

"If I was a victim here I would say, 'This is the first time where my voice is being heard without the concept of the regular old run-of-the-mill criminal justice system, where the respondent is innocent until proven guilty," she said.

Order can be considered 'invasive'

Peters said the order can be considered 'invasive' if an alleged abuser can't have contact with their children and is evicted from the home without notice.

"The alleged abuser has to evict, has to vacate the home and this is all without a hearing or sworn evidence and all without notification to the other party," she said.

Under the act, an alleged abuser has 21 days to change the order. If not, the order can have a lasting effect until up to six months.

"It does have a duration for which it can be very invasive to have no contact for that long to children," she said.

"From the alleged abuser's standpoint, they just need a right to be heard and right to get access to justice in a short timeframe," she said.

Before the new act came out, she said it was possible to obtain an order without notification to a party, but it was in exceptional circumstances, including "situations of urgency involving irreparable and serious harm only."

According to the law, the designated authority who reviews the application must determine, on the balance of probabilities, that intimate partner violence has occurred or is likely to occur and that the seriousness and urgency of the situation warrant the making of an order.

LeBlanc has said an emergency intervention order isn't for "run-of-the-mill" toxic relationships and it's up to the adjudicator to recognize that.

"At times the adjudicator might think there's a safety issue and then maybe perhaps other information comes to light, then at that point it may be overturned, she said. "For safety reasons, I think that's the process we need to follow."

Applied in the right situations

Although the act was clear, Peters found the new law "surprising" when it was put forward last spring.

Now, she said lawyers are hoping for tweaks to the process of legislation.

"There wasn't a lot of feedback," she said. "It went through the process and then it was, 'Now we have to apply the law.'"

Peters did say she agrees the order needs to have a "serious urgency component" and should protect victims of domestic violence and their children.

"The spirit of it [new act] is excellent, it's for protection," she said.

"It just has to be used in exceptional, serious harm situations to protect and be just applied in the right situations and it should protect victims of domestic violence and their children."

LeBlanc says officials should wait a year before any changes are made.

"These are growing pains, it started in May, we need to give it more time," she said