J. V.D.V. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: KHAMSENG DOLGOPOL and DARRIN DOLGOPOL No one appearing for either side. FIAT WIMMER J. February 15, 1995 Acting under the authority of The Victims of DomesticViolence Act, S.S. 1994, c. V-6.02 a justice of the peace madean order granting Khamseng Dolgopol exclusive occupation ofthe family residence and, as well, restraining Darrin Dolgopolfrom having contact with his wife or daughter during thecurrency of the order. Now to be decided is whether the order should be confirmed as an order of this court, or whether it should be terminated or varied in its terms. The Victims of Domestic Violence Act came into force on February 1, 1995. It is novel piece of legislation intended to protect domestic antagonists from violence one against the other and, in an emergency, to provide immediate relief from turbulent predicament. The Act provides for two types of orders. One is "a victim's assistance order" which may be obtained from the Court of Queen's Bench upon an application brought in the ordinary way by victim of domestic violence or by some person authorized to act on the victim's behalf. Section 2, clause (d) of the Act defines "domestic violence" as meaning: (i) any intentional or reckless act or omission that causes bodily harm or damage to property; (ii) any act or threatened act that causes reasonable fear of bodily harm or damage to property; (iii) forced confinement; or (iv) sexual abuse. victim's assistance order may include any number of remedies directed at securing the safety of the victim and the security of the victim's property. "An emergency intervention order" is the second type of available order, although curiously, it is the one that gets the legislation's first focus. 3(1) An emergency intervention order may be granted ex parte by designated justice of the peace where that designated justice of the peace determines that: (a) domestic violence has occurred; and (b) by reason of seriousness or urgency, the order should be made without waiting for the next available sitting of judge of the court in order to ensure the immediate protection of the victim. Not until s. does the procedure for obtaining victim's assistance order appear. The sequence of these provisions may tend to encourage victims of violence and their advisers to see an application for an emergency intervention order as the primary route to relief when, in fact, that order is available only in limited circumstances. An emergency intervention order is granted without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate need for prompt action to protect the victim. Absent such urgency, the application should be one for victim's assistance order brought to this court in accordance with The Queen's Bench Rules. It is upon this point that the order now under consideration founders. The evidence before the justice of the peace who made the order consisted of this statement taken from Mrs. Dolgopol at 10:35 a.m. on February 1. was in the bathroom getting ready to go out with my family to have breakfast at restaurant. told my husband he could go and warm up the car because would be ready in 10 or 15 minutes. Then what happened? went to my bedroom closet to get my blouse on. Then he walked in the bedroom and saw me wearing the blouse. He told me it looked dumb and stupid. Then he said my face is too red and he went on to criticize my makeup. He told me to wear something else because he doesn't like it. Then what happened? told him like the blouse and its the style. also told him to leave me alone. said don't tell you what to wear or criticize you. Then what happened? started to cry then he said go ahead and wear it if you like it that much. said, how am supposed to feel now that you've told me that you don't like it. Then he blew up. Then what happened? He went into the kitchen and smashed something glass on the floor. Then he picked up the recliner footstool and threw it across the living room. He then yelled that was the cause of him having to act this way. It was all my fault and then he called me "fucking bitch" times. After that was scared that he might hurt me so kept quiet for while. Then he tried to force me to go out to the restaurant. told him didn't want to go anymore. He said he'd wait 'till was ready replied that probably wouldn't feel like going out today at all. He then went berserk again and accused me of wrecking his fucking weekend every fucking weekend. Then what happened? Then he went into the bathroom and smashed the steel towel rod and broke it right off the wall. Then he tore down the shower curtain and the rod. Then got really scared and called for my daughter, year old Melissa who was very scared too. We tried to run to the front door. was 1/2 in and 1/2 out when he caught me. Melissa was still on the inside by the door. Darrin reached the door and started closing the door with me still in the way. managed to grab Melissa and run out the door. could hear Darrin swearing inside. Then he opened the door and came running outside and chased me to the car. He jumped in one door and me the other. saw that he was there so jumped out of the car and screamed twice for help. Then what happened? Then Darrin ran back into the house. jumped back in the car with Melissa, locked the doors and took off. was shaking badly and freezing because didn't have coat or any shoes on. drove down to the end of the street and there was police car parked on the side of the road. It was Constable B.D.Miller. He asked me what happened and told him. Cst. Miller asked me if Darrin had guns in the house and said, yes guns. Then later Constable Miller drove me and Melissa to Transition House where am still staying. This incident happened Saturday, January 28/95, approximately 11:00 am. The domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Mrs. Dolgopolwas at risk of immediate harm. There was by then no elementof urgency and the application for relief should have awaitedthe regular Queen\'s Bench Family Law Division chambersittings. In the ordinary course, an application under s. of the Act for victim's assistance order could have been brought on February and both sides given the opportunity to be heard. Section 5 of the Act requires that every emergencyintervention order be reviewed by a judge of this court whomay either confirm the order or "direct a rehearing of thematter". When the present order came before Madam JusticeDawson for review, she perceived a problem and directed arehearing. It is not easy to say from the language or scheme of the statute what the legislature intended by the phrase "a rehearing of the matter". Is there to be hearing de novo? Or is the rehearing to be seen as an appeal from the order of the justice of the peace; or is it matter of judicial review? Some definition of the process may be necessary to establish the parameters of the court's authority on rehearing. However, leave that for day when there is the benefit of argument from counsel. No one appeared on this rehearing and it is even unclear whether the parties were given notice. Nonetheless, am satisfied that the order should not stand. At the time of its making there was no urgency necessitating any extraordinary action. The order will terminate forthwith.
The Respondent and the Applicant had a violent argument after which the Applicant and the child left the matrimonial home and moved to Transition House. The Applicant sought and obtained an emergency intervention order under The Victims of Domestic Violence Act from a Justice of the Peace giving her exclusive occupation of the matrimonial home and restraining her husband from having any contact with her or their daughter during the currency of the order. This order was then brought before a Queen's Bench Judge as required by s.5 of the Act for review. The reviewing Judge refused to confirm the order and directed a rehearing as permitted by the section. The matter then came before this Judge for the rehearing ordered. HELD: Order vacated.  1)An emergency intervention order is granted by a Justice of the Peace under s.3 of the Act without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate a need for prompt action to protect the victim. 2)Absent such urgency, the application should be one for a 'victim's assistance order' brought to a Queen's Bench Judge in Chambers under s.7 in accordance with The Queen's Bench Rules. 3)In this case the domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Dolgopol was at risk of immediate harm. There was by then no element of urgency and the application for relief should have awaited the regular Queen's Bench Family Law Division chamber sittings.  4)The Court commented that it was unclear whether this rehearing was to proceed de novo or as a review but determined that the order should not stand in any event and therefore terminated it forthwith.