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Practical Guide to Elder Abuse and Neglect Law in Canada

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Newfoundland and Labrador

This section outlines:

  1. A snapshot of the law in Newfoundland and Labrador
  2. Key laws and regulations
  3. Abuse response under the Adult Protection Act
  4. Reporting abuse by a regulated health care professional
  5. Exceptions to confidentiality and privacy rules
  6. Criminal prosecution policies
  7. Emergency protection order under the Family Violence Protection Act
  8. Financial abuse by substitute decision-makers
  9. Employment protections
  10. Family violence policies for social assistance
  11. Key government and community contacts

1. Snapshot

Key features of elder abuse and neglect law in Newfoundland and Labrador

In Newfoundland and Labrador, there is a public duty to report adults in need of protection. An adult is in need of protection if they:

  • Do not have decision-making capacity;
  • Are incapable of caring for themselves, or refuse, delay or are unable to address their care needs; and
  • Are being abused or neglected.

Reports can be made to:

  • The Provincial Director of Adults in Need of Protective Intervention;
  • A regional director of adult protection;
  • A social worker; or
  • A police officer.

The regional health authority reporting line is 1-855-376-4957

A person experiencing family violence may apply for an emergency protection order under the Family Violence Protection Act. Family violence is broadly defined to include acts, threats, and omissions that cause bodily harm, property damage, or a reasonable fear for safety or the well-being of a child. The law covers physical, psychological, emotional, sexual, and financial abuse.

Under the Labour Standards Act, an employee who has experienced or witnessed family violence or is caring for someone who experienced family violence can get 3 days of paid leave and 7 days of unpaid leave in a year.

2. Key Laws and Regulations

Adult Protection

Health Care

Family Violence

Personal Planning

Privacy

Employment Protections

3. The Adult Protection Act

Newfoundland and Labrador has specific adult protection legislation, the Adult Protection Act[26]. This law provides the framework for responding to abuse and neglect of adults in need of protection.

3.1 Guiding principles

The Adult Protection Act sets out seven principles to guide the provision of adult protective services. These principles prioritize:

  • The right of capable adults to live as they wish;
  • The importance of using the least restrictive intervention;
  • The need to involve the older adult in decisions; and
  • The importance of maintaining the adult’s relationships.
  • Service principles
  • 8. The following principles apply to the delivery of programs and services under this Act:
  • (a)  an adult is entitled to live in the manner he or she wishes as long as that adult
    • (i)  has the capacity to make decisions respecting his or her lifestyle, and
    • (ii)  does not harm himself, herself or others;
  • (b)  in relation to an intervention to assist or protect an adult who is or may be in need of protective intervention, the paramount consideration shall be the best interests of that adult;
  • (c)  an adult who is or may be in need of protective intervention should be involved to the greatest possible extent in decisions relating to him or her;
  • (d)  an adult who is or may be in need of protective intervention should receive the most effective but the least restrictive and intrusive form of support or protection when unable to care for himself or herself or his or her assets as program and service resources, including budgetary appropriations, permit;
  • (e)  an intervention to assist or protect an adult should be designed for the specific needs of that adult and should be reviewed and revised as his or her needs and condition change;
  • (f)  the delivery of services under this Act should provide for the preservation of family ties and contacts in all appropriate circumstances; and
  • (g)  an adult who is or may be in need of protective intervention should, if desired, be encouraged to obtain support, assistance and advice from family and friends to help that adult understand choices, and to make and communicate decisions.[27]

3.2 Definitions of abuse and neglect

The Adult Protection Act broadly defines abuse. This definition includes physical, psychological, sexual, and financial abuse. It lists intimidation, humiliation, and sexual assault as acts that would constitute abuse.

  • (a)  “abuse” means the deliberate mistreatment of an adult who lacks the capacity to protect himself or herself that causes or is reasonably likely, within a short period of time, to cause the adult
    • (i)  serious physical, psychological or emotional harm, or
    • (ii)  substantial damage to or substantial loss of assets
  • and includes intimidation, humiliation and sexual assault;[28]

The law also applies to neglect and self-neglect. Neglect is defined to mean a failure to provide necessary care to an adult that is reasonably likely to cause serious physical, mental, emotional or financial harm to the adult. Self-neglect is defined to mean an adult’s failure to take care of themselves that is reasonably likely to cause such harm. The definition sets out several examples of circumstances that would constitute self-neglect.

  • (k)  “neglect” means the failure to provide care, assistance, guidance or attention to an adult who lacks capacity that causes, or is reasonably likely, within a short period of time, to cause to the adult serious physical, psychological or emotional harm or substantial damage to or substantial loss of assets;[29]
  • (p)  “self-neglect” means the failure of an adult who lacks capacity to take adequate care of himself or herself where that failure causes, or is reasonably likely, within a short period of time, to cause serious physical or psychological harm or substantial damage to or substantial loss of assets, and includes
    • (i)  living in grossly unsanitary conditions,
    • (ii)  suffering from an untreated illness, disease or injury that, within a short period of time is likely to cause physical or psychological harm,
    • (iii)  suffering from malnutrition to the extent that, without intervention, the adult’s physical or mental health is likely to be severely impaired, and
    • (iv)  creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or substantial loss of the adult’s assets;[30]

3.3 Mandatory reporting abuse and neglect

In Newfoundland and Labrador, there is a public duty to notify authorities if an adult is in need of protective intervention. Although the legislation covers self-neglect, mandatory reporting does not seem to apply to circumstances that do not involve abuse and neglect.

Reports can be made to:

  • The Provincial Director of Adults in Need of Protective Intervention;
  • A regional director of adult protection;
  • A social worker; or
  • A police officer.
  • Reporting required
  • 12. (1) A person who reasonably believes that an adult may be an adult in need of protective intervention shall immediately give that information, together with the name and address of the adult, if known, to the provincial director, a director, a social worker or a peace officer.
  • (2)  Where a person makes a report under subsection (1), the person shall report all the information of which he or she has knowledge.
  • (3)  Where a report is made to a peace officer under subsection (1), the peace officer shall, as soon as possible after receiving the report, inform the provincial director, a director or a social worker.[31]

An adult is defined as being in need of protective intervention if the adult:

  • Does not have decision-making capacity;
  • Is incapable of caring for themselves, or refuses, delays, or is unable to address their care needs; and
  • Is being abused or neglected.
  • Adult in need of protective intervention
  • 5. An adult in need of protective intervention means an adult who lacks capacity and who
  • (a)  is incapable of caring for himself or herself, or who refuses, delays or is unable to make provision for adequate care and attention for himself or herself; or
  • (b)  is abused or neglected.[32]

This reporting requirement applies regardless of where the older adult is living.

  • Application
  • 4. (1) This Act applies to every person who is not a child or youth as defined in the Children, Youth and Families Act, including a person who is a patient or resident in
    • (a)  a facility operated by an authority established under paragraph 6(1)(b) of the Regional Health Authorities Act;
    • (b)  a personal care home as defined in the Personal Care Home Regulations;
    • (c)  a long term care home;
    • (d)  a community care facility; and
    • (e)  an assisted living facility.
  • (2)  This Act does not apply to a person who is the subject of a certificate or a community treatment order issued under the Mental Health Care and Treatment Act.[33]

The Adult Protection Act protects people who report abuse or neglect from harassment or interference.

  • (6)  A person shall not interfere with or harass a person who gives information under this section.[34]

If a person fails to file a report as required under the Act, they can be charged with an offence and receive a fine of up to $10,000 and/or one year imprisonment.

  • Offences
  • 32. A person who contravenes this Act or the regulations is guilty of an offence and is liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year in default of payment or to both a fine and imprisonment.[35]

3.4 Investigating reports of abuse or neglect

The regional director of adult protection must complete an evaluation if they receive a report or referral that an adult in need of protection has been abused or neglected. If, after evaluation, the director believes that the adult is in need of protective intervention, the director is required to carry out an investigation.

Investigators under the Adult Protection Act can come from the following professions:

  • (a) medicine;
  • (b) nursing;
  • (c) occupational therapy;
  • (d) peace officers;
  • (e) physiotherapy;
  • (f) psychology;
  • (g) social work; and
  • (h) speech language pathology.[36]

Investigators have been given powers to investigate, including the power to:

  • Speak with the adult;
  • Request the adult participate in a capacity assessment;
  • Require anyone to provide relevant documents and records;
  • Obtain information about the older adult from health care providers and other service providers, and obtain medical records;
  • Obtain information about the older adult from anyone who manages the adult’s financial affairs;
  • Interview people who have relevant information.[37]

The regional director or investigator may also apply to a judge for a warrant to enter premises and exercise their investigatory powers if they have been denied access, or there are reasonable grounds to believe they will be denied access.[38] Where necessary, they may also apply for an order requiring:

  • A person to release information;
  • The adult to undergo a capacity assessment or medical assessment;
  • An audit on the adult’s assets be carried out; or
  • The adult be removed from their residence. [39]

3.5 Responding to abuse or neglect

After an investigation, if a regional director finds that the adult is in need of protective intervention, they must create a service plan and report the abuse or neglect to the Provincial Director. [40]

The Adult Protection Act sets out requirements for the service plan.[41] The older adult has a right to participate in the development of this plan. The plan must be updated every 6 months.[42]

The regional director may also take the following actions:

  • Provide or arrange for the support services listed in the service plan;
  • Report the abuse or neglect to the police; and/or
  • Move the older adult to a safe place.[43]

Court orders

Upon receiving a report, the Provincial Director may apply to the court for an order declaring that the older adult is in need of protective intervention.[44] If the court grants the order declaring the older adult in need of protective intervention, the order may also provide one or more of the following, if it would be in the best interests of that adult:

  • That the adult continue to live independently or in the care of whoever is currently providing care, subject to supervision by a regional director;
  • Move the adult to the home of someone suitable and committed to the care of the adult, subject to supervision by the regional director;
  • Place the adult under the care of the Provincial Director;
  • Require the spouse or cohabiting partner of the adult to pay support;
  • Direct that pension or other income be used to support the older adult;
  • That the person who committed the abuse or neglect stay away from the older adult’s residence;
  • That the person not communicate with the older adult; or
  • That the person not be involved in the older adult’s affairs or finances.[45]

If the court grants this order, the Public Trustee must be notified.[46]

3.6 Emergency interventions

If the older adult is in need of protective intervention and there is no other way to protect them, a regional director or social worker can apply to the court to have the adult removed from their location. If there is reason to believe that the older adult is in imminent risk of harm and there is no time to obtain a warrant, a regional director or social worker can remove the adult from their current location without obtaining a warrant.[47]

With or without a warrant, a police officer can accompany the director or social worker to help remove the older adult. If the older adult’s property is at risk, a director or social worker is required to take reasonable steps to protect it. Within two days of removing the older adult, the director or social worker must apply to the court for an order stating the adult is in need of protective intervention.[48]

The Provincial Director can ask the Public Trustee to act to protect the assets if they reasonably believe that an adult is evidently an adult in need of protective intervention (but has not yet been so declared), the adult is unable to manage their affairs, and there is immediate danger of substantial loss to those assets.[49]

4. Regulated Health Professionals and Reporting

In Newfoundland and Labrador, there is no single legislation covering all health professionals. Instead, each health profession is regulated under their own Act. The duties to report a health professional who has potentially abused a patient will therefore depend on the provisions of the applicable legislation. This section outlines two of the Acts governing health professionals. To find the duties which apply to a specific health profession, check the Act that governs that profession. Links to each Act are found in section 2 above.

4.1 Remedies

Each college is responsible for regulating health professionals within their jurisdiction, including ensuring members are fit for practice and are not committing any infractions. This process is limited to reviewing the regulated health professional’s actions. If a member has been found to be engaging in abuse, the college’s remedies are limited to restricting a regulated health professional’s practice. However, a complaint usually will not result in any remedies for the person who has been abused. The specifics of what actions a college can take in regulating a health professional’s actions will depend on the specifics of the Acts governing the practice area.

4.2 The Medical Act

The Medical Act[50] regulates doctors in Newfoundland, and designates the College of Physicians and Surgeons of Newfoundland and Labrador as the relevant regulatory body.

The lawrequires a doctor to make a report to the College if they observe or have evidence that another doctor has done something which requires sanctioning, including misconduct or unbecoming conduct. If a person ends a partnership or puts restrictions on a doctor’s employment due to misconduct, this must also be reported to the College. A member of the public can also send a complaint to the college.[51]

When an allegation is received (whether a report by a doctor, or a complaint by any other person), the registrar may try to resolve it by consent of the parties. If this fails, the allegation is referred to the Complaints Authorization Committee.[52] The Committee conducts an investigation to determine if the doctor engaged in misconduct. If the Committee determines there are no reasonable grounds to believe the doctor engaged in conduct requiring sanction, the Committee may dismiss the allegation. It may also issue directions to the doctor regarding the doctor’s practice, such as requiring further training.[53] The Committee may counsel or caution the doctor, suspend or restrict the doctor’s licence, or refer the matter to the disciplinary panel.[54]

The disciplinary panel considers the matter through a public hearing conducted by an adjudication tribunal.[55]

After the hearing, if the doctor is found guilty of conduct requiring sanction, several actions can be taken, including:

  • Issue a reprimand;
  • Suspend a doctor’s licence;
  • Revoke the doctor’s licence;
  • Impose a fine;
  • Require the doctor to pay the complainant or other person affected by the doctor’s conduct;
  • Require the doctor obtain medical treatment or counselling;
  • Require the doctor to undergo further education or training;
  • Place restrictions on a doctor’s practice.[56]

4.3 The Registered Nurses Act, 2008

The Registered Nurses Act, 2008[57] regulates registered nurses in Newfoundland. It designates the College of Registered Nurses of Newfoundland and Labrador as the relevant regulatory authority.

The lawrequires a nurse to report to the College if they observe or have evidence that another nurse has done something that requires sanctioning, including misconduct or unbecoming conduct. If an employer fires a nurse or puts restrictions on their employment this must also be reported. A member of the public can send a complaint to the College.[58]

When an allegation is received (whether a report by a nurse, or a complaint by any other person), the Director of Professional Conduct Review may try to resolve the complaint by consent of the parties. If this fails, the allegation is referred to the Complaints Authorization Committee. The Committee conducts an investigation to determine if the nurse has engaged in conduct that needs sanctioning. If the Committee determines that there are reasonable grounds to believe a nurse has engaged in conduct deserving sanction, the Committee may counsel or caution the nurse, recommend suspending or restricting the nurse’s licence, or refer the matter to the disciplinary panel.[59]

The disciplinary panel considers the matter through a public hearing conducted by the adjudication tribunal.[60] After the hearing, if the nurse is found guilty of conduct deserving of sanction, the actions that can be taken are the same as the actions under the Medical Act.[61]

4.4 Other reporting duties

Regulated health professionals may also have some duties to report abuse or misconduct arising from their professional codes of conduct. If you are a regulated health professional, examine your professional codes of conduct or practice standards to see if you have any responsibilities under these rules, or contact your college for advice.

5. Confidentiality, Privacy, and Privilege

Confidentiality ensures vital information is kept private for professions which require a client to disclose private information, such as counsellors, doctors, and nurses. A lawyer must respect solicitor-client privilege. Requirements of confidentiality and privilege can be found in legislation, in common law, and in professional codes of ethics, codes of conduct, or professional standards.

Generally, professionals, staff, and volunteers must get consent from the older adult before disclosing personal or health information. However, exceptions to confidentiality and privilege have been created by various laws.

5.1 Anonymity of a person who reports abuse

The Adult Protection Act contains provisions relevant to confidentiality. The identity of a person who reports abuse or neglect must be kept confidential.

  • (5)  A person has a right of access to information or records created or maintained respecting that person in the course of the administration of this Act except where
    • (a)  that information would identify a person making a referral under section 12; or
    • (b)  there are reasonable grounds to believe that the disclosure might result in physical, emotional or financial harm to that person or another person.[62]

5.2 Confidentiality of personal and health information

Exceptions under adult protection law

The Adult Protection Act requires all adults to make a report if another adult is in need of protection. This requirement applies regardless of whether the information is confidential or privileged. This reporting requirement also overrides solicitor-client privilege.

  • (4)  This section applies notwithstanding that the information is confidential or privileged, and an action does not lie against the person providing the information in good faith unless the information is given maliciously or without reasonable cause.
  • (5)  Subsection (4) applies to information which is solicitor-client privileged[63]

The Adult Protection Act gives investigators the power to obtain information needed to conduct their investigation, including health care and financial information. This right overrides any confidentiality requirements. Information protected by solicitor-client privilege does not have to be disclosed, except as it relates to a report of abuse or neglect by the lawyer.

  • (4)  For the purpose of subsection (3), the right to information overrides
    • (a)  a claim of confidentiality or privilege, except solicitor-client privilege; and
    • (b)  a restriction in an enactment or the common law about the disclosure or confidentiality of information.
  • (5)  Notwithstanding paragraph (4)(a), an investigator may, in the course of an investigation, require and access information that is solicitor-client privileged where it relates to the report of a solicitor under section 12.[64]

Exceptions under privacy law

In Newfoundland there are two pieces of legislation that outline privacy rights:

  • Access to Information and Protection of Privacy Act—applies to public bodies such as government departments and agencies.[65]
  • Personal Health Information Act—applies to personal health information used or collected by a custodian, which includes health care professionals, health care facilities, and public bodies.[66]

The federal Personal Information Protection and Electronic Documents Act also applies in Newfoundland. See the federal laws section for confidentiality exceptions under this Act, which applies to private organizations conducting commercial activities and to federally regulated organizations such as banks.

The two Newfoundland and Labrador privacy laws govern the manner in which personal information may be collected, used, and disclosed. They require personal information to be kept confidential. Generally, disclosure is permitted only if it is for the purpose for which the personal information was collected, or a person consents to the disclosure. Only in prescribed circumstances can information be disclosed without consent.[67]

Under the Access to Information and Protection of Privacy Act, the circumstances under which personal information can be disclosed without consent include:

  • Where compelling circumstances exist that affect a person’s health or safety and where notice of disclosure is given to the individual;[68]
  • To assist with a police investigation;[69] or
  • As required by another law.[70]

Under the Personal Health Information Act, the circumstances under which personal information can be disclosed without consent include:

  • To prevent or reduce a risk of serious harm to the mental or physical health or safety of an individual;[71]
  • For the delivery, planning, and monitoring of health care, under prescribed requirements;[72]
  • For investigating and disciplining a regulated health care professional;[73]
  • To assist with a police investigation or other investigation;[74] or
  • As required by another law.[75]

Exceptions that apply to solicitor-client privilege

Confidentiality and legal privilege are two similar, but legally distinct concepts. Both are based on the principle that a lawyer owes a duty of loyalty to the client.

Solicitor-client privilege is a legal principle that applies to all communications between a client and a lawyer where the communication was for the purposes of obtaining legal advice and was intended to be confidential.[76] It operates to protect such information from having to be disclosed in legal proceedings.

However, solicitor-client privilege will not apply:

  • Where privilege has been waived by the client;
  • Where there is a clear, serious, and imminent threat to public safety;[77]
  • Where the innocence of an accused is at stake;[78]
  • Where limited by law.

Other types of privilege includes litigation privilege, which protects communications created for the dominant purpose of preparing for litigation.

A lawyer’s duty of confidentiality is an ethical duty. Unlike privilege, this duty covers any communications made during the professional relationship – there is no requirement that the communications be made for the purposes of obtaining legal advice.

The Law Society of Newfoundland and Labrador sets out the duty of confidentiality and applicable exceptions in its Code of Professional Conduct.[79]

  • Confidential Information
  • 3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
    • (a) expressly or impliedly authorized by the client;
    • (d) otherwise permitted by this rule.[80]
    • (b) required by law or a court to do so;
    • (c) required to deliver the information to the Law Society; or

The Code also permits disclosure of confidential information where there is imminent danger of death or serious injury, and disclosure is necessary to prevent this.

  • Future Harm / Public Safety Exception
  • 3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.[81]

The Code provides an exception to solicitor-client privilege when disclosure is required by law.[82] This exception is relevant to adult protection legislation in Newfoundland.

6. Criminal Prosecution Policy

While criminal law is primarily under the federal jurisdiction, Newfoundland’s Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador[83] provides guidance to prosecutors. There are no policies directly covering elder abuse, but a few chapters touch on aspects of elder abuse.

The Direct Indictments chapter discusses when a direct indictment would be in the public interest, and lists factors which would indicate direct indictment. Factors relevant to elder abuse include:

  • Where the age, health or other circumstances relating to witnesses requires their evidence to be presented before trial court as soon as possible;[84] and
  • Where there is a reasonable basis to believe that the lives, safety or security of witnesses or their families may be in peril.[85]

The Victims of Crime chapter describes policies for supporting victims during the criminal justice process.

  • Victims must be given the opportunity to meaningfully participate in the criminal justice process;
  • Victims should be informed, early in the process, of the proper role of prosecutors;
  • For crimes of violence, prosecutors must be sensitive to the victim’s sense of vulnerability and should consider appropriate measures to enhance security and comfort, including keeping victims informed about the progress of the case;
  • Prosecutors should eliminate barriers that impede participation by victims living with disabilities or whose first language is not English;
  • Victims should be informed about available victim services;
  • If the victim is testifying, prosecutors should consider the use of testimonial aids or other methods of testifying that would make the victim more comfortable.[86]

The Spousal Violence chapter is not directly aimed at elder abuse but could apply when the person abusing the older adult is their spouse. Principles include:

  • Prosecutors should consider whether bail should be opposed, regardless of whether the victim intends to continue the relationship with the abuser;
  • If the victim is testifying, the prosecutor properly prepare the witness, explain the criminal justice process to the victim, and attempt to be provide support, encouragement, and understanding;
  • Prosecutors should provide early support for victims, to reduce the likelihood they will be reluctant to testify; and
  • Prosecutors should recommend a sentence which reflects the principle of denunciation, should oppose discharge, and should consider including probation as part of the sentence (with appropriate conditions).[87]

7. Protection Orders under the Family Violence Protection Act

The Family Violence Protection Act[88] outlines how a person who is experiencing family violence can obtain an emergency protection order.

7.1 Definitions

The Family Violence Protection Act allows a person to apply for an emergency protection order if they are experiencing family violence.

Family violence is very broadly defined. It includes acts, threats, and omissions that cause bodily harm, property damage, or a reasonable fear for safety or the well-being of a child. The law covers physical, psychological, emotional, sexual, and financial abuse, as well as neglect. It specifically includes stalking and forced confinement.

  • Family violence defined
  • 3. (1) For the purpose of this Act, “family violence” means one or more of the following acts or omissions committed against an applicant or a child by a respondent:
    • (a)  an assault that consists of the intentional application of force that causes the applicant to fear for his or her safety but does not include an act committed in self-defence;
    • (b)  an intentional, reckless or threatened act or omission that causes bodily harm or damage to property;
    • (c)  an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;
    • (d)  forcible physical confinement without lawful authority;
    • (e)  sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation;
    • (f)  conduct that causes the applicant to reasonably fear for his or her safety, including following, contacting, communicating with, observing or recording a person;
    • (f.1) conduct that causes psychological or emotional harm or a reasonable fear of that harm, including a pattern of behaviour the purpose of which is to undermine the psychological or emotional well-being of the applicant or a child;
    • (f.2) conduct that controls, exploits or limits the applicant’s access to financial resources for the purpose of ensuring the applicant’s financial dependency; and
    • (g)  the deprivation of food, clothing, medical attention, shelter, transportation or other necessaries of life.[89]

The person must have lived with the respondent the abuser in an intimate relationship, or have a child with the abuser (regardless of whether they were married or living together).[90]

  • 4. (1) An application for an emergency protection order may be made by
    • (a)  a person who resides with or has resided with the respondent in a conjugal relationship, whether within or outside marriage; or
    • (b)  a person who is, together with the respondent, a parent of one or more children, regardless of their marital status or whether they have lived together.[91]

7.2 Emergency protection orders

The court can grant an emergency protection order if there has been family violence, the person is at risk of harm, and the order needs to be made urgently to ensure immediate protection. In deciding whether to grant the order, the judge must consider the nature of the family violence, the history of family violence towards the applicant, whether there is immediate danger to persons or property, and the best interests of the person and their child (if any).[92]

  • Granting of emergency protection order without notice to another person
  • 5. (1) A judge, on the application of a person referred to in subsection 4(1) made in the prescribed form and manner, may make an emergency protection order without notice to another person where the judge determines on a balance of probabilities that
    • (a)  family violence has occurred; and
    • (b)  by reason of seriousness or urgency the emergency protection order should be made without delay to ensure the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage.
  • (2)  In determining whether an emergency protection order should be made, the judge shall consider, but is not limited to considering, the following factors:
    • (a)  the nature of the family violence;
    • (b)  the history of family violence by the respondent towards the applicant and whether it is more likely than not that the respondent will continue the family violence;
    • (c)  the existence of immediate danger to persons or property; and
    • (d)  the best interests of the applicant and an affected child.
  • (3)  For the purpose of paragraph (2)(c), immediate danger to persons or property may be found to exist notwithstanding that the applicant has been forced to vacate his or her residence as a result of the family violence of the respondent and has found temporary shelter elsewhere.[93]

A police officer or a lawyer may apply for the order on the adult’s behalf, if they have the adult’s consent to do so.[94]

Possible terms of an order

Possible terms of the emergency protection order include:

  • Exclusive occupation of the residence for a defined period;
  • Removal of the abuser from the residence by a police officer;
  • Police accompaniment to collect belongings;
  • No direct or indirect communication with the adult or another specified person;
  • Staying away from specified locations;
  • Temporary possession of personal property, including cars, bank cards and identification;
  • Restraining the respondent from dealing with the adult’s property;
  • Seizure of weapons by police;
  • Requiring the abuser to make rent or mortgage payments on the residence;
  • Temporary care and custody of a child to the adult or another person; and
  • Any other terms the court considers necessary to ensure the immediate protection of the adult or another person or property.[95]

An emergency protection order cannot override an order under the Adult Protection Act that places an adult in the care and custody of the Provincial Director or another person.[96]

The abuser can apply to a judge to have the emergency protection order be set aside.[97] The hearing for the order can be conducted in private if having a public hearing would cause harm to the person.[98]

For an emergency protection order to be granted, criminal charges do not have to be laid.[99] The order can be in effect for up to 90 days, but it cannot be renewed or extended.[100]

8. Financial Abuse by Substitute Decision-Makers

In Newfoundland and Labrador, a substitute decision-maker for financial matters could be:

  • An attorney under an Enduring Power of Attorney (EPOA), chosen by the older adult;
  • A representative for an Registered Disability Savings Plan (RDSP) under the Enduring Powers of Attorney Act;[101] or
  • A guardian appointed by the court under the Mentally Disabled Persons’ Estates Act.[102]

8.1 Attorney under an EPOA

Appointing an attorney

An older person can appoint a person to be their attorney under an EPOA. An EPOA document must state that it continues to be effective even after the adult loses legal capacity. An EPOA can be valid as soon as it is signed, or at a later time period such as when the adult loses capacity.[103]

EPOAs can cover any of the financial decisions that the adult could make, but the EPOA should specify the scope of the attorney’s powers.[104]

Duties of an attorney

An attorney has several duties under the Enduring Powers of Attorney Act:

  • Act in the adult’s best interests;
  • Act honestly, reasonably and in good faith; and
  • Only exercise the powers designated in the EPOA.[105]

Ending an EPOA

An EPOA can be ended or changed in several ways:

  • The adult revokes their EPOA (while the adult has legal capacity);
  • The adult changes the attorney (while the adult has legal capacity);[106] or
  • A person applies to the court to change who the attorney is (if the adult no longer has capacity).

The people who can make an application to change the attorney are:

  • A person with an interest in the estate;
  • A person permitted by the court;
  • The public trustee; or
  • The attorney.[107]

When the adult is not capable, a person with an interest in the estate can also apply to the court to have the court review the attorney’s actions.[108]

8.2 Representative for an RDSP

Creating a designation agreement

If an older adult wants to create a RDSP but does not have the capacity to create an RDSP, the adult may have the capacity to create a designation agreement. This designation agreement appoints two adults (or the Public Trustee) as designates who can hold the RDSP.[109]

To create a designation agreement, the adult must have capacity to create this agreement, based on all relevant factors, including whether the adult:

  • Communicated a desire to enter into the RDSP and a designation agreement;
  • Can express feelings of approval and disapproval; and
  • Has a relationship characterized by trust with the designates.[110]
  • Designation of legally authorized representatives
  • 15. (1) Where an adult wishes to establish an RDSP but that adult may lack the legal capacity to do so, the adult may execute a designation agreement to designate persons as his or her legally authorized representatives, and those persons may act as holders of the adult’s RDSP.
  • (2)  In deciding whether an adult who may lack legal capacity to enter into an RDSP has the capacity to enter into a designation agreement, all relevant factors shall be considered, including
    • (a)  whether the adult communicates, orally or otherwise, a desire to enter into the RDSP and the designation agreement;
    • (b)  whether the adult demonstrates preferences and can express feelings of approval or disapproval;
    • (c)  whether the adult is aware that entering into a designation agreement or changing or revoking it means that the designates may make, or stop making, decisions or choices that affect the adult as they relate to the RDSP; and
    • (d)  whether the adult has a relationship with the persons who are intended to be designates that is characterized by trust.
  • (3)  Where an adult cannot satisfy subsection (2), that adult is not entitled to appoint designates under a designation agreement, but that adult, the parents or guardians of that adult, the spouse or cohabiting partner of that adult, or a child of that adult who has reached the age of majority may apply to court for an order appointing the public trustee as the designate of the adult under a designation agreement, and the court may issue that order where it is in the best interests of the adult to do so.[111]

Designates may be relatives of the older adult.[112] Unless the designate is the Public Trustee, designates must act collectively and their decisions must be unanimous. The designates have all the powers the older adult would in managing the RDSP.[113]

Duties of RSDP designates

An RDSP representative has the following duties:

  • Undertake the responsibilities of an RDSP holder;
  • Comply with relevant laws regarding RDSPs;[114]
  • Act with the care, diligence, and skill of a reasonably prudent person in comparable circumstances;[115] and
  • Annually provide the Public Trustee with accounts of all transactions involving the RDSP.[116]

Ending a designation agreement

A designation agreement ends or can be changed in the following ways:

  • The older adult revokes the designation agreement by creating a new designation agreement or executing a revocation agreement;
  • The older adult creates a new designation agreement;
  • A guardian is appointed by the court under the Mentally Disabled Persons’ Estates Act;
  • The court orders the designation agreement ended; or
  • The older adult dies.[117]

If one of the designates resigns, dies, or is unable to act, the Public Trustee will become the sole designate until a replacement designate is appointed. If a replacement is not appointed within 12 months, the Public Trustee is required to apply to court for an order appointing a designate.[118]

A person can apply to the court to have the designation agreement terminated or changed. The Enduring Powers of Attorney Act allows for this in many circumstances, including where there has been abuse or neglect or the designate is not acting in the adult’s best interests.

  • Application to court
  • 21. (1) A person, including the public trustee, may make an application to court for confirmation, variation or termination of a designation agreement, or for another order as appropriate where that person reasonably believes
    • (a)  fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, amend or revoke a designation agreement;
    • (b)  the making, use, amendment or revocation of a designation agreement is clearly inconsistent with the current wishes, values, beliefs or best interests of the adult who made, amended or revoked the agreement;
    • (c)  there is an error in a designation agreement or an error was made in executing, witnessing or filing the agreement;
    • (d)  anything improper has occurred in the making, use, amendment or revocation of a designation agreement;
    • (e)  a designate is
      • (i)  abusing or neglecting the adult for whom the designate is acting,
      • (ii)  failing to follow the instructions in the designation agreement,
      • (iii)  incapable of acting as a designate, or
      • (iv)  otherwise failing to comply with the designation agreement or the duties of a designate;
    • (f)  anything improper has occurred in the use of funds paid to designates from an RDSP, or where the use of those funds is contrary to this Act or to the best interests of the designator; or
    • (g)  any criteria specified in the designation agreement as grounds for objection have been met.[119]

8.3 Court-appointed guardian

Appointing a guardian

If an older adult does not have an attorney appointed under an EPOA and they are not capable of making an EPOA, a guardian can be appointed by the court to manage their estate. Court-appointed guardianship is outlined in the Mentally Disabled Persons’ Estates Act.[120] The court can appoint a guardian if the person is not capable of managing their affairs, whether due to illness or age.[121]

The following people can apply to the court for a guardianship order:

  • Any person having an interest in the estate of the adult; or
  • Any person who has responsibility for the care or treatment of the adult may.[122]

A guardian takes control of all property of the older adult. The court can order that all such property be vested or transferred to the guardian in order to facilitate the administration of the adult’s estate.[123] The court can give the guardian the power to:

  • Sell, transfer, or lease real property;
  • Carry on business; or
  • Exercise any other powers or rights the older adult would have been able to exercise if they were capable.[124]

Duties of a guardian

Under the MDPEA, a guardian has two duties:

  • Within 6 months of their appointment, the guardian must file with the court an inventory of all property of the older adult and any debts owing; and
  • Update the inventory if any new property is discovered.[125]

Removing a guardian

The court can remove and replace a guardian when there is good cause for doing so.[126] The older adult or their guardian can apply to have the guardianship ended and have the property transferred back to the older adult.[127]

If the court believes that the older adult only temporarily lacks capacity for financial decisions, the court can order that a specified amount of money be used to support the older adult instead of appointing a guardian. A person will be appointed to administer the money needed to maintain the older adult.[128]

8.4 The role of the Public Trustee

Under the Adult Protection Act, the Provincial Director can ask the Public Trustee to act to protect assets if they reasonably believes that:

  • An adult is evidently an adult in need of protective intervention (but has not yet been so declared);
  • The adult is unable to manage their affairs; and
  • There is immediate danger of substantial loss to those assets.[129]

Designates under a designation agreement are required to submit annual accounts to the Public Trustee. The Public Trustee has the power to monitor the operation of an RDSP, including requiring more documentation of transactions made and requiring additional information be provided.[130]

The Public Trustee can act as:

  • A guardian of the person;
  • An attorney under an EPOA;[131]
  • A designate for the operation of an RDSP;[132] or
  • A guardian under the Mentally Disabled Persons’ Estates Act.[133]

9. Employment Protections

9.1 Whistleblower protections

The Adult Protection Act contains protections for employees who report abuse or neglect in good faith, prohibiting their employer from taking action against them.

  • Protection of employee from reprisal
  • 31. (1) A person shall not take a reprisal against an employee or direct that one be taken against an employee because that employee has, in good faith
    • (a)  sought advice about making a report;
    • (b)  made a report; or
    • (c)  cooperated in an investigation under this Act.
  • (2)  A person who takes a reprisal against an employee or directs that one be taken contrary to subsection (1) is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from another sanction provided by law.[134]

9.2 Statutory employment leave

Adults who are experiencing family violence may have access to an employment leave. To qualify for family violence leave, the employee must have either experienced or witnessed family violence themselves or caring for someone who experienced family violence. Family violence has the same definition as in the Family Violence Protection Act.[135] The employee must have been working for their employer for at least 30 days to qualify.[136]

The Labour Standards Act allows employees to take 3 days of paid leave and 7 days of unpaid leave for family violence in a year. The leave must be for the purposes of:

  • Accessing medical attention, counselling or other services from a health professional;
  • Obtaining services provided by a transition house, government, or any organization that provides services to victims of family violence;
  • Moving; or
  • Getting legal services.[137]

An employee must give notice to their employer that they are taking this leave. The employer can request proof of why this leave is needed. An employee cannot be fired for taking this leave.[138]

10. Family Violence Policies for Income Assistance

The Income and Employment Support Policy and Procedure Manual provides an overview of income and employment support programs, some of which may apply to older adults who are fleeing family violence. These include:

  • Regardless of eligibility for income support, anyone who is a victim of violence can receive emergency transportation to a safe place.
  • Victims of violence that are already receiving income support, can continue to receive such support when entering a transition house or shelter. The ex-spouse should be removed from the allowance.
  • Victims of violence that are not already receiving income support may be eligible for a personal allowance when entering a transition house (provided by the transition house).
  • A person applying for income support may receive exemptions or extensions on the ordinary identification requirements if they have difficulty accessing identification when fleeing violence.
  • When a person is applying for income support, they are exempted from having their ex-spouse’s income verified.
  • Client services officers must maintain the client’s confidentiality and not disclose any information without the client’s consent.
  • If the person is moving to a new residence, they can receive a start-up allowance to buy needed household goods like furniture and clothing.[139]

The policy manual has a chapter on people who are not citizens. Permanent residents can apply for income assistance and are assessed under the ordinary eligibility requirements. If a sponsored immigrant is experiencing family violence and needs to apply for income assistance, the policies on family violence would likely apply.[140]

11. Key Contacts

Reporting Elder Abuse

Reporting Line

Call your regional health authority at 1-855-376-4957 to make a report if you suspect somebody is being abused or neglected. Reporting is legally required under the Adult Protection Act (APA).

Government Agencies

Office for Aging and Seniors (part of the Seniors and Aging Division)

The Seniors and Aging Division works with other government departments and agencies to promote healthy aging across the lifespan and acts as a centre of expertise and knowledge on seniors and aging. The Division is also responsible for the administration of the Adult Protection Act.

P.O. Box 8700
3rd Floor, West Block Confederation Building
St. John’s, NL A1B 4J6

Provincial Advisory Council on Aging and Seniors

The Provincial Advisory Council on Aging and Seniors advises government in preparing for an aging population by ensuring that a seniors’ perspective is reflected in policy development and in planning for future service delivery.

P.O. Box 8700
3rd Floor, West Block
Confederation Bldg., St. John’s, NL A1B 4J6

Office of the Seniors’ Advocate

The Office of the Seniors’ Advocate is an independent office of the House of Assembly of Newfoundland and Labrador. The Office has authority to identify, review and analyze systemic issues related to seniors and make recommendations respecting changes to improve seniors’ services.

P.O. Box 13033
St. John’s NL  A1B 3V8

Violence Prevention Initiative

The Initiative is a multi-departmental, government – community partnership to find long term solutions to the problem of violence against those most at risk in society, including older persons. The Violence Prevention Initiative is coordinated by the Office for the Status of Women.

P.O. Box 8700
4th Floor, West Block
Confederation Building
St. John’s, NL A1B 4J6

Victim Services

Victim Services is a free service offered by the Department of Justice and Public Safety to victims of crime in Newfoundland and Labrador.  It provides general information about the criminal justice system, information on a specific case, safety planning, court preparation, assistance writing a victim impact statement, referrals to specialized community resources, and emotional support and short-term counselling.

P.O. Box 8700
4th Floor, East Block
Confederation Building
St. John’s, NL A1B 4J6

Community Organizations

Seniors NL

SeniorsNL is a non-profit organization dedicated to promoting the independence and well-being of older adults in Newfoundland and Labrador through the provision of information and delivering various programs and services. It operates an information and referral line.

24 Road Deluxe (Saint Luke’s Home)
St. John’s, NL A1E 0G5

NL Network for the Prevention of Elder Abuse (NLNPEA)

The NLNPEA is a network of community and government partners. It aims to provide information and support to individuals and organizations (from both community and government) working to prevent elder abuse and/or provide services to those affected by elder abuse.

Mailing address: 243 Topsail Road, Suite 110, St. John’s, NL  A1E 0G5

Public Legal Information Association of Newfoundland and Labrador (PLIAN)

The PLIAN is An independent non-profit that provides general information and education about the law to all Newfoundlanders and Labradorians, with the intent of increasing access to justice. It operates a legal information line and lawyer referral service.

Suite 301, 291-293 Water Street
St. John’s, NL A1C 1B9
Canada

Transition House Association of Newfoundland and Labrador (Domestic Violence Help Line Service)

The Transition House Association of Newfoundland and Labrador and the Office for the Status of Women offer a Domestic Violence Help Line Service. This service will detect the region where the caller is located and immediately connect them with one of ten transitions houses that are part of the Transition House Association of Newfoundland and Labrador. The Help Line operates 24 hours a day, seven days a week.

Endnotes

[1] Adult Protection Act, SNL 2011, c A-4.01 [APA].

[2] Public Trustee Act, 2009, SNL 2009, c P-46.1 [PTA].

[3] Chiropractors Act, 2009,SNL 2009, c C-14.01 [CA].

[4] Dental Act, 2008, SNL 2008, c D-6.1 [DA, 2008].

[5] Denturists Act, 2005,SNL 2005, c D-7.1 [DA, 2005].

[6] Dietitians Act, SNL 2005, c D-23.1 [DA]. 

[7] Dispensing Opticians Act, 2005, SNL 2005, c D-25.1 [DOA].

[8] Health Professions Act, SNL 2010, c H-1.02 [HPA].

[9] Hearing Aid Practitioners Act, SNL 2005, c H-2.01 [HAPA].

[10] Licensed Practical Nurses Act, 2005, SNL 2005, c L-12.1 [LPNA].

[11] Massage Therapy Act, 2005, SNL 2005, c M-1.2 [MTA].

[12] Medical Act, SNL 2011, c M-4.02 [MA].

[13] Occupational Therapists Act, 2005, SNL 2005, c O-4.1 [OTA].

[14]Optometry Act, 2012, SNL 2012, c O-7.02 [OA].

[15] Pharmacy Act, 2012, SNL 2012, c P-12.2 [PA, 2012].

[16] Physiotherapy Act, 2006, SNL 2006, c P-13.1 [PA, 2006].

[17] Psychologists Act, 2005, SNL 2005, c P-34.1 [PA, 2005].

[18] Registered Nurses Act, 2008, SNL 2008, c R-9.1 [RNA]

[19] Social Workers Act, SNL 2010, c S-17.2 [SWA].

[20] Family Violence Protection Act, SNL 2005, c F-3.1 [FVPA]

[21] Enduring Powers of Attorney Act, RSNL 1990, c E-11 [EPOAA]

[22] Mentally Disabled Persons’ Estate Act, RSNL 1990, c M-10 [MDPEA].

[23] Access to Information and Protection of Privacy Act, 2015, SNL 2015, c A-1.2 [AIPPA].

[24] Personal Health Information Act, SNL 2008, c P-7.01 [PHIA]

[25] Labour Standards Act, RSNL 1990, c L-2 [LSA].

[26] APA, supra note 1.

[27] Ibid, s 8.

[28] Ibid, s 2(a).

[29] Ibid, s 2(k).

[30] Ibid, s 2(p).

[31] Ibid, s 12.

[32] Ibid, s 5.

[33] Ibid, s 4.

[34] Ibid, s 12(6).

[35] Ibid, s 32.

[36] Adult Protection Regulations, NLR 53/14, s 4; see also APA, ibid, s 15.

[37] APA, supra note 1, s 16.

[38] Ibid, s 17.

[39] Ibid, s 19.

[40] Ibid, s 20.

[41] Ibid, s 27; Adult Protection Regulations, supra note 36, s 3.

[42] APA, Ibid, s 27.

[43] Ibid, s 20.

[44] Ibid, s 21.

[45] Ibid, s 22.

[46] Ibid, s 22(9).

[47] Ibid, s 23.

[48] Ibid, s 23.

[49] Ibid, s 24.

[50] MA, supra note 12.

[51] Ibid, ss 39, 41-42.

[52] Ibid, s 43.

[53] Ibid, s, 44(3).

[54] Ibid, s 44(6).

[55] Ibid, ss 44, 45, 46.

[56] Ibid, ss 4, 4, 48, 49, 51.

[57] RNA, supra note 18.

[58] Ibid, ss 18, 20-21.

[59] Ibid, s 23.

[60] Ibid, ss 22-25.

[61] Ibid, ss 23, 27, 28, 30.

[62] APA,supra note 1, s 29(5).

[63] Ibid, s 12(4), (5).

[64] Ibid, s 16(4), (5).

[65] AIPPA, supra note 23, s 5.

[66] PHIA, supra note 24, ss 4-12.

[67]AIPPA, supra note 23, s 68; PHIA, ibid, s 34.

[68] AIPPA, Ibid, s 68(1)(p).

[69] Ibid, s 68(1)(n).

[70] Ibid, s 68(1)(d).

[71] PHIA, supra note 24, s 40(1)(a).

[72] Ibid, ss 37, 39.

[73] Ibid, s 41.

[74] Ibid, s 41-42.

[75] Ibid, s 43.

[76] Descôteaux v Mierzwinski, [1982] 1 SCR 860 at 870–876, 141 DLR (3d) 590 [Descôteaux cited to SCR].

[77] Smith v Jones, [1999] 1 SCR 455 at para 35, 169 DLR (4th) 385, [Smith cited to SCR]

[78] R. v. McClure, [2001] S.C.R. 445, [McClure cited to SCR]

[79] The Law Society of Newfoundland & Labrador, Code of Professional Conduct, St John’s: The Law Society of Newfoundland & Labrador, 2013 (amended 1 January 2020).

[80] Ibid, ch 3 (3.3-1).

[81] Ibid, ch 3 (3.3-3).

[82] Ibid, ch 3(3.3-1(b)).

[83] Newfoundland and Labrador, Department of Justice and Public Safety, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador (St John’s: Office of the Director of Public Prosecutions, October 2007), online: <https://www.gov.nl.ca/jps/prosecutions/>.

[84] Ibid, at 19-3.

[85] Ibid, at 19-2.

[86] Ibid at 16-2 – 16-8.

[87] Ibid at 15-2 – 15-7, 15-12 – 15-13.

[88] FVPA, supra note 20.

[89] Ibid, s 3(1).

[90] Ibid, s 4(1).

[91] Ibid, s 4(1).

[92] Ibid, s 5.

[93] Ibid, s 5.

[94] Ibid, s 4(2).

[95] Ibid, s 6.

[96] Ibid, s 13(1.1)(b).

[97] Ibid, s 10.

[98] Ibid, s 16.

[99] Ibid, s 3(2).

[100] Ibid, s 7.

[101] EPOAA, supra note 21.

[102] MDPEA, supra note 22.

[103] EPOAA, supra note 21, ss 2-3, 5

[104] Ibid, ss 5-7.

[105] Ibid, ss 6-7.

[106] Ibid, ss 8, 11.

[107] Ibid, s 9.

[108] Ibid, s 10.

[109] Ibid, ss 2, 15.

[110] Ibid, ss 2, 15.

[111] Ibid, s 15.

[112] Ibid, s 16.

[113] Ibid, s 17.

[114] Ibid, s 17.

[115] Ibid, s 17(3)(c).

[116] Ibid, s 20.

[117] Ibid, s 18.

[118] Ibid, s 19.

[119] Ibid, s 21.

[120] MDPEA, supra note 22, s 3.

[121] Ibid, s 2, 17.

[122] Ibid, s 3.

[123] Ibid, s 6.

[124] Ibid, ss 10-12.

[125] Ibid, s 7.

[126] Ibid, s 4.

[127] Ibid, s 19.

[128] Ibid, s 16.

[129] APA, supra note 1, s 24.

[130] EPOAA, supra note 21, s 20.

[131] PTA, supra note 2, s 4.

[132] EPOAA, supra note 21, s 19.

[133] MDPEA, supra note 22, s 20-21.

[134] APA, supra note 1, s 31.

[135] FVPA, supra note 20.

[136] LSA, supra note 25, ss 43.33, 43.34.

[137] Ibid, s 43.34.

[138] Ibid, ss 43.34-43.36.

[139] Newfoundland and Labrador, Department of Advanced Education and Skills, Income and Employment Support Policy and Procedure Manual at Chapter 9: Special Needs Benefits (xii) Victims of Violence (1 June 2019).

[140] Ibid, at Chapter 2: Eligibility (ii) Determining Eligibility – Non Canadians (9 October 2019).

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