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Provincial Court Subpoena Form Nova Scotia

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Provincial Court Subpoena Form Nova Scotia Powered By Docstoc
					Domestic Abuse


March 2007

    q   What is domestic abuse?
    q   Am I to blame for the abuse?
    q   Are children affected by domestic abuse?
    q   What can I do if I am being abused?
    q   What do the police do if I report an assault?
    q   Will the police always lay charges?
    q   Can I withdraw charges?
    q   Do I have to go to court?
    q   What happens in court?
    q   Will I be kept informed?
    q   What sentence will my spouse or partner get?
    q   What are “Anti-stalking Laws”
    q   What are my rights if I leave my spouse or partner?
    q   What are my rights to my children if I leave my spouse or partner?
    q   What are my rights to the matrimonial home if I leave my spouse or partner?
    q   What are my rights to property if I leave my spouse or partner?
    q   Where can I get more information?



Q - What is domestic abuse?

A – Domestic abuse can occur in a marriage, common-law or other intimate relationship.
Most victims of domestic abuse are women, but men can also experience abuse by a partner in a relationship. The
term “domestic abuse” (or “family violence”) describes any form of abuse by one spouse (husband, wife, common-law
or same sex partner) against the other.

Abuse may be:
   q physical (for example, slapping, choking or punching)

   q threats (for example, to harm you, your children, or your property)

   q mental or emotional (for example, constant criticism, insulting you)

   q sexual (for example, forcing you to have sex or to participate in other sexual activities)

   q financial (for example, refusing to give you money for groceries, not paying bills)

   q social (for example, not letting you see your family or friends, embarrassing you in public)



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Q - Am I to blame for the abuse?

A - Often a spouse or partner who is abused is made to feel worthless by the abuser and told he or she is to blame for
the abuse. But no one deserves to be abused. The responsibility for the abuse lies solely with the person who is
abusing you.

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Q – Are children affected by domestic abuse?

A - Children who witness domestic abuse may suffer serious short and long-term effects, and often have the same
symptoms as children who are abused directly. These symptoms may include: depression, anxiety, aggression, low
self-esteem, bad relationships, and trouble in school. Boys of battered mothers are more likely to grow up to become
abusers and there is a greater likelihood that girls will become the victims of abuse.
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Q - What can I do if I am being abused?

A - Your choices depend on your personal, emotional and financial situation. Here are some suggestions:

1. Talk to someone about the abuse.
You can tell the police, a family member, a friend, your doctor or someone else you trust
about the abuse. You can talk to staff at your local Transition House or Women’s Centre for information, support and
advocacy. See the contact list below under the FAQ Where can I get more information?

2. Get medical help.
If you have been hurt you can go to your doctor or to the Emergency Department at a hospital. If your injuries are
visible you can have photos taken, which may be used in court if assault charges are laid. There are special medical
and police procedures for sexual assault cases. See the Legal Information Society of Nova Scotia’s (LISNS) pamphlet
called “Sexual Assault” and the Family Violence FAQs called Sexual Assault on this website for more information.

3. Apply for a peace bond.
A peace bond is a court order signed by your spouse or partner (the “defendant”) promising to keep the peace and be
of good behaviour. The peace bond may have other conditions, such as a requirement that the defendant stay away
from your home and your place of work and not have guns or other weapons.

You have to go to court to get a peace bond. You do not have to be assaulted to apply, nor do assault charges have
to be laid. You do have to convince the judge that you have a reasonable fear of the defendant. The defendant will
also be in court. The judge may issue the peace bond for up to one year. In most cases you apply for a peace bond at
Provincial Court. In some limited circumstances, the Family Court, or Supreme Court (Family Division) in Cape Breton
and Halifax Regional Municipality, may also deal with a peace bond application. See the LISNS pamphlet called
“Peace Bonds” and the Family Violence FAQs called Peace Bonds on this website for more information.


4. Apply for an Emergency Protection Order.
An Emergency Protection Order is a court order made by a Justice of the Peace to protect victims of family violence
where the situation is serious and urgent. Emergency Protection Orders may:
    q remove your spouse or partner (the respondent) from the home;

    q give you (the victim) temporary possession of personal property (such as a car, keys, bank cards);

    q give you or another person temporary care and custody of your children;

    q order your spouse or partner to stay away from you, your home or place of work;

    q order your spouse or partner not to commit any further acts of violence against you.




You (the victim) or a person acting your behalf, such as a police officer, Victims’ Services staff or Transition House
worker, may apply for an Emergency Protection Order between the hours of 9 am and 9 pm any day of the week by
calling the Justice of the Peace Centre at 1-866-816-6555. Emergency Protection Orders last for up to 30 days. Police
and transition houses may also apply on your behalf any time day or night. See LISNS’ Family Violence FAQs called
Emergency Protection Orders on this website for more information.

5. Leave your spouse or partner
If you and your spouse or partner do not get along, the law does not require you to stay together. Before you leave
you should talk with a lawyer about your rights in relation to your children and property. If you decide to leave,
depending on your situation, you may be able to rent a place to live, go to a Transition House, or stay with family or
friends.

6. Report to the police.
Police investigate reports of criminal offences and lay criminal charges if there is enough evidence. The Criminal
Code, a federal law, says that assault, sexual assault and threats are criminal offences. It describes three types of
assault and sets maximum penalties (sentences) for each type. Assault may be:
    q Simple assault (usually called “common assault”). Examples are slapping, pushing, threatening to harm you,

      your children or property.
    q Assault with a weapon or Assault causing bodily harm. Examples are being beaten with a baseball bat or

      getting a black eye or broken bones.
    q Aggravated assault is an assault where your life is at risk or you are wounded, maimed or disfigured.

      Examples are where the offender threatens to kill you or where your injuries from the assault leave you with a
      limp or scars.


See the Family Violence FAQs called Sexual Assault on this website for more information on sexual domestic
violence offences.

Agencies such as Transition Houses, Women’s Centres and Victims’ Services can provide information and support to
help you. For contact details, see the question “Where can I get more information?” at the end of these FAQ’s

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Q – What is the Nova Scotia Framework for Action Against Family Violence?

A - Nova Scotia’s Framework for Action Against Family Violence says:
• family violence must be treated as a serious problem;
• those involved in the justice system, including police, Crown Attorneys, and probation officers must be consistent in
their approach to family violence;
• written guidelines (“protocol”) must be followed when dealing with family violence;
• the victim must be kept informed at every stage of the criminal process.

These guidelines apply to all forms of family violence committed by partners in a
marriage, common-law or other intimate relationship (such as dating), as well as those who are separated or divorced.

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Q - What do the police do if I report an assault?

A - The police should respond to, and investigate, all domestic abuse complaints.
They have written guidelines (“protocol”) to follow when dealing with domestic abuse (family violence). The guidelines
require the police to:
    q talk to you and your spouse or partner separately and get a written statement from each of you and any

      witnesses
    q arrest your spouse or partner if it is likely your spouse will continue or repeat the assault, or if there are other

      reasons for arrest. For example, your spouse or partner used a weapon or injured you
    q tell you what help is available in your community and arrange to transport you to a Transition House or other

      safe place if necessary
    q following an arrest, if the police release your spouse or partner they should have him or her sign an agreement

      (“undertaking”) to have no contact with you until the matter is dealt with by the court
    q lay a charge if there are grounds to believe that your spouse committed an offence




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Q - Will the police always lay charges?

A - The police lay charges where there are reasonable grounds to believe that an offence has occurred. They can lay
charges even if you do not want them to. The guidelines (“protocol”) for police, Crown Attorneys and others working in
the justice system prioritize domestic violence (family violence) cases and encourage arrest, charge and prosecution.
Cases of assault are usually dealt with in Provincial Court.

If the police do not lay charges and you think that they should, you can speak to the senior officer in charge, or, if you
are dealing with the municipal police, you can make a complaint to the City or Town Clerk or the Chief of Police. If you
are dealing with the RCMP you can talk to the Commanding Officer or contact the RCMP Public Complaints
Commission. If the police do not lay an assault charge, you can lay one. You must go to the court office and ask to
see a Justice of the Peace (JP). If you have not already talked to the police, the JP may suggest you do so. However,
the JP must allow you to lay the charges if you want to.

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Q - Can I withdraw charges?

A – If the police have laid a charge only the Crown Attorney can withdraw it. The
police must tell your spouse or partner that you cannot insist that the charges be withdrawn. If you laid the charge
privately (rather than the police) you can withdraw it by informing the court office.

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Q - Do I have to go to court?

A - If the police laid the charge the Crown Attorney will present the case in court. The Crown Attorney presents the
evidence against a person accused of breaking a criminal law. You will likely be required to appear as a witness (to
“testify”) for the Crown. If so, you will receive a subpoena, which is a paper from the court ordering you to come to
court. If you do not obey the subpoena, the Crown Attorney may ask a judge to issue a warrant for your arrest and
charge you with ‘Failure to Appear’.

The fact that you and your spouse or partner have worked out your problems is not. by itself, enough to make the
Crown Attorney withdraw the charges. If you are scared to testify, because of threats or because you fear
repercussions from your spouse or partner, tell the police or the Crown Attorney, or contact Victims’ Services or your
local Transition House.

If you laid the charge privately you must present the case against your spouse or partner or you can hire a lawyer to
do this for you.

See Family Violence FAQs Being a Witness for more information. For contact information for Victims’ Services,
Transition Houses and Women’s Centres, see the question Where can I get more information?

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Q – What happens in court?

A – For more information on what happens in court, who is present in the courtroom, how to give evidence (“testify”),
Victim Impact Statements, what to do if you are frightened or if you have been threatened, and other court-related
issues, please refer to the Family Violence FAQs Being a Witness.

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Q - Will I be kept informed?

A - The guidelines (“protocol”) require that you be kept informed by police, Victims’ Services and the Crown Attorney.
You should be provided with information about:
• The terms of release and a copy of the release order (“undertaking” or “recognizance”) if your spouse or partner is
released to await trial
• Your right to provide a Victim Impact Statement to the court (See the Family Violence FAQs on Being a Witness for
more information on Victim Impact Statements)
• The type of sentence the Crown Attorney will recommend to the judge
• The sentence
• If there is an appeal, the date of the appeal and the outcome
• Any probation order and a copy of the order.

In addition, the Crown Attorney should meet with you at least once before the trial.

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Q - What sentence will my spouse or partner get?

A - If your spouse or partner (the “offender”) is found guilty he or she will be sentenced. The sentence will depend on
the seriousness of the assault. Types of sentences include a fine, a jail term, restitution, a discharge or probation. The
judge may choose one or more of these penalties. For example, the judge may fine the offender and place him or her
on probation. The offender may get a criminal record. Our brochure Sentencing has more information.

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Q – What are “Anti-stalking Laws”?

A - Anti-stalking laws (also called “criminal harassment”) may help protect you if you fear for your safety or the safety
of someone you know because your spouse or partner is repeatedly:
• following you around
• contacting you, your family, friends or workplace
• watching your home or workplace
• doing anything which threatens you or your family

If your spouse does any of these things you should contact the police. For more information on obtaining a peace
bond to keep your spouse or partner away from you, see the Family Violence FAQs on Peace Bonds. If your situation
is serious and urgent, you may want to apply for an Emergency Protection Order. See the Family Violence FAQs
called Emergency Protection Orders on this website.

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Q - What are my rights if I leave my spouse or partner?

A - There is no simple answer to this question because each case is different. You should get legal advice based on
your individual situation. You should not sign any papers that may affect your rights until you have spoken to a lawyer.
You should not use the same lawyer as your spouse. You can contact the LISNS Legal Information Line and Lawyer
Referral Service for basic legal information or to get a referral to a lawyer. Abused women can contact their local
Transition House for legal information on what to do when leaving an abusive partner.

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Q – What are my rights to my children if I leave my spouse or partner?

A - Both parents have equal rights to their children. On separation or divorce, if you cannot agree on an access
(visitation) arrangement or on who will have custody of the children you can apply to family court and a judge will
decide.
If you decide to leave your spouse and you want to take your children, you should
talk to a lawyer or Transition House worker as soon as possible. You will probably need to apply for an “interim sole
custody order” as soon as possible. For child custody and access orders, you apply to the Family Court, or, if you live
in Halifax Regional Municipality or Cape Breton, the Supreme Court (Family Division). Do not take your children out of
the area (“jurisdiction”) where you have been living before talking with a lawyer, since you could be charged with child
abduction - even if your reason for leaving is to escape abuse.

If you leave and are unable to take your children with you, you can still apply for custody or for access. You can also
apply to family court for support for the children and for yourself if you need it. LISNS’ pamphlets Custody and Access
and Maintenance and the Family Law FAQs give more information.

For more information about child custody and access issues in domestic abuse cases, speak to a Transition House
worker or refer to the Making Changes: A Book for Women in Abusive Relationships, which is available on the Nova
Scotia Advisory Council on the Status of Women at:
www.gov.ns.ca/staw/pubs2006_07/MakingChanges4rev_2006.pdf.

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Q – What are my rights to the matrimonial home if I leave my spouse or partner?

A - Usually both spouses have a right to live in the matrimonial home. On separation or divorce if you and your spouse
or partner cannot agree on who will leave the home, who will pay the mortgage and upkeep on the home, or whether
the home will be sold, you can apply to family court and a judge will decide.

You do not have a right to keep your spouse or partner out of the home without a court order (for example, a family
court order, peace bond, emergency protection order) and your spouse or partner does not have a right to keep you
out. If either of you want to keep the other out, you should talk to your lawyer.

If your spouse or partner assaults you in the home, you can call the police. They may remove your spouse or partner
from the home temporarily. If they arrest your spouse or partner, they may release him or her and include in the terms
of release that he or she have no contact with you until the matter is dealt with in court. They may also order your
spouse or partner to stay away from the home.

You can apply for an exclusive possession order for the matrimonial home. Such
an order would forbid your spouse or partner to enter the home. The application is made to the Nova Scotia Supreme
Court or Supreme Court (Family Division). You should
talk to the police, your lawyer for advice on getting an exclusive possession order, a peace bond or an emergency
protection order.

If you are not living in the matrimonial home, for example, if you have left your
spouse and rent an apartment, your spouse does not have a right to enter the apartment. You can call the police if
your spouse or partner tries to enter.

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Q – What are my rights to property if I leave my spouse or partner?

A - Besides the home, you may have rights to a vehicle, furniture and other property. You should talk to a family
lawyer about your situation. If you are living in a common law or same sex relationship and have a Registered
Domestic Partnership, you may have rights to family owned property. You should speak with a lawyer about your
situation.

If you are in a common-law or same sex relationship that is not a Registered Domestic Partnership usually you have a
right to remove anything that you owned before or bought during the relationship. Problems arise if you bought things
jointly or if you and your spouse or partner disagree about who owns what. If this happens, you should talk with a
family lawyer.

When you leave you can take your personal items such as clothes. If you take the children with you, you can take
their personal items also. If you leave in an emergency, you may need to return to the home later to collect personal
items such as clothes for yourself or your children.

If you fear that your spouse will assault you, ask the police to go with you to the house. If the police agree to go with
you their role is to ensure that you and your spouse keep the peace. They do not have authority to make decisions as
to who owns what. The courts are the proper place to decide property disputes.

<Back to questions>


Q - Where can I get more information?

A – These are some agencies that may be of help:

Victims’ Services supports victims of crime by providing information, support and assistance as a case moves
through the criminal justice system.
Head Office: 1-888-470-0773
Dartmouth: 902-424-3307
Kentville 1-800-565-1805
New Glasgow 1-800-565-7912
Sydney 1-800-565-0071

Transition Houses provide residential and outreach services to abused women and their children. For more
information, or for details about the Transition House nearest you, you can call the Transition House Association of
Nova Scotia (THANS) at (902) 429-7287 or visit the THANS website: www.thans.ca.

Women’s Centres provide a variety of services, such as advocacy, accompaniment, referrals and information. There
are eight Women’s Centres in Nova Scotia: Tri-County, Yarmouth (902-742-0085); Antigonish Women’s Resource
Centre (902-863-6221); Every Woman’s Centre, Sydney (902-567-1212); Lea Place, Sheet Harbour (902-855-2668);
Pictou County Women’s Centre, New Glasgow (902-755-4647); Second Story Women’s Centre, Lunenburg (902-543-
1315); The Women’s Place Resource Centre, Cornwallis (902-584-7195); and the Central Nova Women’s Centre,
Truro (902-895-4295).

Making Changes: A Book for Women in Abusive Relationships For an overview of issues and resources for
abused women, see the guidebook Making Changes: A Book for Women in Abusive Relationships, which is available
online at the Nova Scotia Advisory Council on the Status of Women:
www.gov.ns.ca/staw/pubs2006_07/MakingChanges4rev_2006.pdf. You can order a hardcopy by calling the Advisory
Council toll free at 1-800-565-8662.

The Legal Information Society of Nova Scotia (LISNS). LISNS has a Legal Information Line and Lawyer Referral
Service. For information on the law or to use the Lawyer Referral Service call 455-3135 in the Halifax/Dartmouth
Metro area or 1-800-665-9779 toll free in NS if you are calling outside Metro.

For information on LISNS publications and other business call (902) 454-2198.

For pre-recorded information call LISNS Dial-a-Law program.
It provides 24 hour recorded legal information. Tel: 420-1888 (not toll free).

Legal Aid: Nova Scotia Legal Aid has offices across the province. They are listed in the phone book under Nova
Scotia Legal Aid. Also, Dalhousie Legal Aid serves Halifax/Dartmouth. Tel: 423-8105.
<Back to questions>

These FAQ’s were developed with the support of a financial contribution from the Department of
Justice Canada.

				
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