Lawyers take issue with proposed family violence law changes

A group of family lawyers in the NWT says potential changes to territorial family violence legislation won’t address issues and could cause fresh problems.

The NWT government is planning to amend the Protection Against Family Violence Act, which offers protections to victims of family violence beyond those in criminal law.

In a written submission to a committee of MLAs reviewing those amendments, five lawyers – Margo Nightingale, Idowu Ohioze, Erin George, Sukham Dhindsa and Renée Fougere – argue the planned changes could divert the act’s focus away from family violence.

“It is hard to see how the proposed amendments will solve the problems we know exist in this act without creating new problems,” Nightingale wrote in an email to Cabin Radio.

“What I hate to say out loud is that I worry most that proposing these changes make it look like something is being done to improve things, when the changes might actually make things worse. 

“And when government can’t afford anything but free solutions to costly problems, I worry even more.”

Nightingale said the issue of family violence in the NWT is “bigger than one piece of legislation and people seem to want this legislation to do more things for more people.”

In their letter, the five lawyers said robust projects, programs and supports for survivors and offenders are needed to better address family violence, alongside changes to societal attitudes.

What are the proposed changes?

The NWT’s Protection Against Family Violence Act, or PAFVA, came into force in 2005. It allows people to apply to the court for a protection order with no notice to the person from whom they want protection, who is known as the respondent.

If granted, a protection order can remove a respondent from their home, prohibit them from having contact with the applicant, and bar them from possessing firearms, among other terms.

A justice of the peace may issue an emergency protection order in urgent cases for up to 90 days. A protection order with no end date may be issued by an NWT Supreme Court judge.

PAFVA focuses on family violence – physical, sexual, psychological, emotional or financial abuse from a family member or intimate partner. Under the act, a person may apply for a protection order against a spouse or former spouse, someone they live or lived with in an intimate or family relationship, a co-parent, or a parent or grandparent of themselves or of someone in one of the prior categories.

The territory has proposed expanding that list to include someone with whom a person has – or had – a dating relationship, family relationship or care relationship.

The NWT government also hopes to add physical and online stalking to the definition of family violence, and to create a “tort of stalking,” which it says would allow victims of stalking to sue their harasser for damages.

Bullying, Elder abuse and intimidation

One survivor of intimate partner violence, who faced challenges applying for an emergency protection order in the NWT, said the proposed changes could save lives.

The woman, who did not identify herself to protect her children, told a public briefing last month she was unable to get a protection order against her former partner as, at the time, they were not married and their child had not yet been born.

Some MLAs want PAFVA to be expanded even further.

At the public briefing, Monfwi MLA Jane Weyallon Armstrong expressed disappointment that the act will not deal with violence and bullying between youth who are not related. She said not addressing that violence was akin to condoning it.

Mackenzie Delta MLA George Nerysoo highlighted concerns over Elder abuse in the territory. NWT officials said the proposed inclusion of a care relationship is intended to expand protections for Elders under the act.

Yellowknife Centre MLA Robert Hawkins said a constituent had experienced a family member or former partner coming to their work and staring at them. He questioned whether protection from that behaviour could be included under the act, noting it made the person feel uncomfortable but not afraid for their personal safety.

Not ‘a catch-all solution’

In a letter to the MLAs shared with Cabin Radio, Nightingale said she was “struck by the genuine concern of legislators for improving safety in the NWT.”

She cautioned, however, that the proposed changes to PAFVA may not be the best way to address that concern.

The act “cannot be a ‘catch-all’ solution,” she wrote.

“Over-expansion risks constitutional challenges – costly for taxpayers, embarrassing for legislators and harmful to survivors if the law is struck down.”

Nightingale explained that emergency protection orders are intended for “true emergencies” where people need immediate protection from family violence and “there is a realistic threat of immediate harm” to them or their child.

She said the orders are not meant to address discomfort or difficult relationships and that hearings without notice to a respondent require strict safeguards.

“Legislators should not ignore these principles when amending the NWT act,” she wrote, adding there was a need for broader and more meaningful consultation on PAFVA.

Nightingale said there are other remedies for addressing violence, including peace bonds, restraining orders and bail conditions. Any changes to the act should be “laser focused” on proven issues within the existing legislation, she argued.

“The proposed changes don’t have this focus and other tools may need to be applied or created,” she wrote.

Nightingale said adequately addressing violence would require multiple laws or a cross-government assessment of how laws and policies can better support survivors.

She added that extended services, reliable funding, training, proper educational tools and social change are also needed.

Concerns with amendments and application issues

In their written submission, also shared with Cabin Radio, the family lawyers said the proposed expansions to PAFVA would include cases where there is no family relationship. They said that risks taking the act’s focus away from family violence and confusing people who have to interpret and apply the legislation.

The lawyers argued there is no evidence that Elders are being abused by caregivers and said the proposed amendments would not address concerns regarding extended family and other community members abusing Elders.

They gave the example of an Elder in a community who was afraid of their nephew financially and physically harassing him, but was not eligible for a protection order under the act.

Regarding the tort of stalking, the lawyers said there is a disagreement in law regarding whether it must be created by legislation. They said the tort currently only exists in Manitoba and Nunavut and they want to know whether it has filled a gap in those jurisdictions.

The lawyers also identified several issues they have experienced with PAFVA and its application that they said will not be addressed by the proposed amendments.

According to the written submission, lawyers in the NWT have seen a misuse of the emergency protection order system as justices of the peace do not always understand PAFVA or how to implement it.

The lawyers said, for example, that some emergency protection orders, or EPOs, have interfered with a respondent’s parenting time in cases where children have not been shown to be at risk of harm.

“EPOs should not be used as a means of affecting parenting time except in the circumstances where there is reasonable evidence that a child’s safety is at risk,” the written submission states.

All protection orders that create parenting barriers or result in an eviction should be automatically reviewed in court with notice to all parties, the lawyers argued.

They highlighted a case where a youth had been made homeless by a protection order and faced challenges altering the terms of that order, which prevented them from seeing a sick family member before they passed away.

The written submission further expressed concern that some emergency protection orders have remained in effect for longer than an emergency existed, and people have faced barriers when requesting changes to those orders.

The lawyers gave the example of a woman who wanted to vary the length of an emergency protection order as she no longer feared for her safety and needed help from the father of her children.

Shelter workers and RCMP have sometimes misunderstood the act, the lawyers added. (To apply for an emergency protection order, the NWT government advises people to contact their local RCMP detachment or YWCA Alison McAteer House.)

The written submission pointed to a case where a lawyer who left the NWT to avoid a serious threat from their spouse was told by a shelter worker that she could not apply for an emergency protection order from outside the territory.

“As a lawyer herself, she found it extremely frustrating she was denied assistance and wondered how non-lawyers navigated the system,” the submission stated.

In two recent cases, the lawyers continued, shelter workers had rejected requests by applicants for hearings. They said lawyers ended up separately arranging hearings for those applicants, both of whom were granted emergency protection orders.

Solutions the lawyers propose include a departmental review of the emergency protection order system and regular interactive training for justices of the peace, police and shelter workers.