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Practical Guide to Elder Abuse and Neglect Law in Canada

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New Brunswick

This section outlines:

  1. Key laws and regulations
  2. Adult protection provisions under the Family Services Act
  3. Reporting abuse by a regulated health care professional
  4. Exceptions to confidentiality and privacy rules
  5. Criminal prosecution policies
  6. Emergency intervention orders under the Intimate Partner Violence Intervention Act
  7. Substitute decision-makers in New Brunswick and how to challenge their authority
  8. Employment protections
  9. Social assistance policy
  10. Key government and community contacts

1. Snapshot

Key features of elder abuse and neglect law in New Brunswick

  • The Family Services Act includes provisions for protecting children, protecting vulnerable adults, and providing community social services. The law covers physical, sexual, or psychological abuse, neglect, self-neglect and circumstances where an older person or a person with a disability is in danger of being a victim of abuse.
  • In New Brunswick, there is no duty to report abuse or neglect of an adult. Anyone can report the abuse or neglect of an adult to the Department of Social Development: 1-833-733-7835. 
  • An emergency intervention order may be granted under the Intimate Partner Violence Intervention Act if an older person is experiencing intimate partner violence. Intimate partner violence is defined to include psychological, physical, sexual, and financial abuse, as well as neglect.
  • The Employment Standards Act allows an employee experiencing domestic violence, intimate partner violence, or sexual violence to take an intimate partner violence leave, or sexual violence leave. An employee can take up to 16 weeks job-protected leave (5 days of which are paid leave).

2. Key Laws and Regulations

Health Care

Family Law

Decision-making

Privacy

Employment Protections

3. Adult Protection under the Family Services Act

New Brunswick’s Family Services Act[38] includes provisions for protecting children, protecting vulnerable adults, and providing community social services.

3.1 Guiding principles

The law’s preamble emphasizes the need to protect vulnerable adults, recognizing that older people, people with disabilities, and people who are dependent on others are entitled to protection and can benefit from social services.[39]

A key principle under the Family Services Act is that the adult’s wishes should be taken into consideration in making any decision that affects the adult. The adult should be directly consulted, and in any matter or proceeding affecting the adult, the adult should have the right to be heard.[40]

  • Consideration of wishes of neglected or abused adult
  • 36.1(1) In the exercise of any authority under this Act given to any person to make a decision that affects a neglected adult or abused adult, the neglected adult’s or abused adult’s wishes, where they can be expressed and where the neglected adult or abused adult is capable of understanding the nature of any choices that may be available, shall be given consideration in determining the neglected adult’s or abused adult’s interests and concerns, and the interests and concerns of the neglected adult or abused adult shall be given consideration as distinct interests and concerns, separate from those of any other person.
  • 36.1(2) Where the wishes of a neglected adult or abused adult have not been or cannot be expressed or the neglected adult or abused adult is incapable of understanding the nature of the choices that may be available, the Minister shall make every effort to identify the neglected adult’s or abused adult’s interests and concerns and shall give consideration to them as distinct interests and concerns separate from those of any other person.
  • 36.1(3) A person who is authorized under this Act to make a decision that affects a neglected adult or abused adult may, in order to comply with subsection (1), consult directly with the neglected adult or abused adult, in which case the authorized person shall do so in camera unless the authorized person determines that to do so would not be in the best interests of the neglected adult or abused adult; and in consulting with the neglected adult or abused adult in camera the authorized person may exclude any person, including any party to a proceeding and that person’s counsel, from participating in or observing the consultation.
  • 36.1(4) In any matter or proceeding under this Act affecting a neglected adult or abused adult, whether before a court or any person having authority to make a decision that affects a neglected adult or abused adult, the neglected adult or abused adult has the right to be heard either on his or her own behalf or through a responsible spokesperson.[41]

3.2 Definitions of abuse and neglect

The adult protection provisions of the Family Services Act apply to “elderly persons” and “disabled persons.” An elderly person is someone who is 65 years old or older:

  • “elderly person” means one who has reached the age of sixty-five years, and, in the absence of positive evidence of age, means a person who apparently has reached that age.[42]

A “disabled person” is defined as follows:

  • “disabled person” means one who, because of physical or mental impairment, including congenital or genetic abnormality, suffers absence or reduction of functional competence which substantially limits his ability to carry out normal daily activities.[43]

The Family Services Act defines who a neglected or abused adult is for the purpose of protective services. An older person would be considered a neglected adult if they:

  • Are incapable of caring properly for themselves as a result of physical or mental infirmity; and
  • Are not receiving proper care; or
  • Refuse or delay making provisions for their own care.

An older person would be considered an abused adult if they are a victim of physical, sexual, or psychological abuse, or are in danger of being a victim.[44] Financial abuse is not covered by the Family Services Act.[45]

  • Neglected or abused adult
  • 34(1) Where an adult is a disabled person or an elderly person, or is within a group prescribed by regulation, and
    • (a) is incapable of caring properly for himself by reason of physical or mental infirmity and is not receiving proper care and attention; or
    • (b) refuses, delays or is unable to make provision for his proper care and attention,
  • that person is a neglected adult for purposes of sections 35 to 42.
  • 34(2) Where an adult is a disabled person or an elderly person, or is within a group prescribed by regulation, and is a victim of or is in danger of being a victim of
    • (a) physical abuse;
    • (b) sexual abuse;
    • (c) mental cruelty; or
    • (d) any combination thereof,
  • that person is an abused adult for purposes of sections 35 to 42.[46]

3.3 Reporting of abuse and neglect

In New Brunswick, there is no duty to report abuse or neglect of an adult. Anyone can report the abuse or neglect of an adult to the Department of Social Development.

The Family Services Act allows for a “professional person” to report abuse or neglect and offers some protections for professional persons reporting abuse or neglect. They are protected from legal action as long as they act in good faith.

Professional persons include:

  • Workers in seniors’ residences;
  • Health care professionals;
  • Social workers; and
  • Anyone who has a duty of care towards vulnerable adults as a result of their employment.
  • Disclosure of information by professional person
  • 35.1(1) A professional person may disclose information to the Minister respecting a person whom the professional person has reason to believe is a neglected adult or an abused adult, including information that has been acquired through the discharge of the professional person’s duties or within a professional relationship.
  • 35.1(2) No action lies against a professional person who in good faith provides information to the Minister under subsection (1).
  • 35.1(2.1) No action shall be commenced against a person in relation to the providing of information to the Minister under this section except with leave of the court.[47]
  • “professional person” means a worker in any adult day care center or residential or institutional facility, a vocational counsellor or trainer, an educator, a physician, a nurse, dentist or other health or mental health professional, a hospital administrator, a social work administrator, social worker or other social service professional, a police or law enforcement officer, a psychologist, a guidance counsellor or a recreational services administrator or worker and includes any other person who by virtue of his employment or occupation has a responsibility to discharge a duty of care towards an elderly person or a disabled adult.[48]

3.4 Investigating reports of abuse and neglect

If the Minister of Social Development has reason to believe that an adult may be abused or neglected, they must investigate. The Minister is required to determine whether the security of the person is in danger.[49] The Family Services Act describes what it means for a person’s security to be in danger. The meaning includes abuse and neglect:

  • Security of person, protective care of person
  • 37.1(1) The security of a person may be in danger when
    • (a) the person is without adequate care or supervision;
    • (b) the person is living in unfit or improper circumstances;
    • (c) the person is in the care of someone who is unable or unwilling to provide adequate care or supervision of the person;
    • (d) the person is in the care of someone whose conduct endangers the life, health or emotional well-being of the person;
    • (e) the person is physically or sexually abused, physically or emotionally neglected, sexually exploited, including sexual exploitation through pornography or in danger of such treatment;
    • (f) the person is living in a situation where there is severe domestic violence;
    • (g) the person is in the care of someone who neglects or refuses to provide or obtain proper medical, surgical or other remedial care or treatment necessary for the health or well-being of the person or refuses to permit such care or treatment to be supplied to the person; or
    • (h) the person by his or her behaviour, condition, environment or association, is likely to injure himself or herself or others.[50]

The Minister of Social Development has a number of powers to support its investigation. The Minister may:

  • Authorize a medical practitioner to examine and report on the physical and mental condition of the person and the care and attention the person is receiving;[51]
  • Apply to the court for a warrant to enter a location where a person is obstructing the investigation; [52] and
  • Apply for a warrant to have an abuser removed from the adult’s residence and be detained. [53]

The Minister conducts investigations through the province’s Adult Protection program.

3.5 Responding to abuse and neglect

Following an investigation, if the Minister determines that the adult is an abused or neglected adult, the Minister may:

  • Provide social services to the adult;
  • Refer the matter to community services or any other appropriate service; or
  • Refer the matter to law enforcement or other government departments.[54]

If the neglected or abused adult does not have mental capacity, then the Minister may:

  • Apply for a court order regarding the safety or care of the adult (see further below); or
  • Put the person under protective care.[55]

Protective care

A person may be put under protective care only if:

  • Their security may be in danger; and
  • The person has refused to accept social services.

In providing protective care, the Minister:

  • May move the adult to another location for care; or
  • Arrange for a medical examination and treatment of the adult.

A court order is required before an older person can be placed in any kind of protective care, such as a long-term care facility, without their consent. Within 5 days of placing the adult in protective care, the Minister must either:

  • Remove the protective care; or
  • Apply for a court order.[56]

Court orders that the Minister may apply for in respect of a neglected or abused adult who does not have mental capacity include:

  • The adult must remain where they are currently residing, under the care of the person currently caring for them;
  • The adult must remain under the care and supervision of the Ministry;
  • A dangerous person can be removed from the residence by warrant;
  • A protective intervention order against someone who is a source of danger to the adult, which can require that person to move out of the adult’s premises, not contact the adult, and/or pay support to the adult;
  • Authorization for the Minister to give consent on the adult’s behalf to medical, surgical, or dental treatment;[57] or
  • The adult be hospitalized for medical treatment.[58]

The court will only grant an order if it appears to be in the best interests of the adult to do so.[59] An order can be in effect for up to one year but can be extended for additional periods of no more than one year each.[60]

The adult may apply to the court to have the order varied or terminated. The court may vary or terminate the order if it is satisfied that circumstances have changed sufficiently since the order was made.[61]

4. Regulated Health Professionals and Reporting

In New Brunswick, there is no single law 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.

4.1  Remedies

The College is responsible for regulating health professionals within their jurisdiction, including making sure 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. The College can remove a person’s practice credentials if they are danger to the public.

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[62] regulates physicians in New Brunswick and designates the College of Physicians and Surgeons of New Brunswick as the relevant regulatory body.

Certain mandatory reporting obligations apply to physicians:

  • Sexual abuse: If a physician has reason to believe that another health professional (including one regulated by a different governing body) has sexually abused a patient or client, the physician must report this to the health professional’s governing body within 21 days. The name of the patient should not be included in the report unless the client consents to doing so. If the physician learned of the abuse through a patient, the patient should be advised of the physician’s reporting obligation before the doctor files a report;[63]
  • Unfit to practice: If a physician has reason to believe that another physician engaged in professional misconduct or is incapacitated or unfit to practice, the physician should file a report with the College as soon as possible.[64]

The Complaints and Registration Committee of the College considers and investigates matters regarding the conduct of any member of the College. It can investigate regardless of whether a written complaint has been received.[65] The Committee may, among other powers, require a member to submit to a physical or mental examination and may appoint an investigator to carry out the investigation.[66]

After investigation, the Committee may:

  • Recommend that no further action be taken;
  • Refer the complaint to the Review Committee or a Board of Inquiry; or
  • Recommend that the member be counselled, cautioned, or censured.[67]

If the Board of Inquiry hears the matter and determines that the member is guilty of professional misconduct, it may do one or more of the following:[68]

  • Suspend the member’s licence;
  • Revoke the member’s licence;
  • Place restrictions or conditions on a member’s licence;
  • Issue a reprimand; or
  • Issue a fine.[69]

4.3 The Nurses Act

The Nurses Act[70]regulates registered nurses and nurse practitioners in New Brunswick. It designates the Nurses Association of New Brunswick as the relevant regulatory body.

Certain mandatory reporting obligations apply to nurses and nurse practitioners under the Nurses Act:

  • Sexual abuse: If a member has reason to believe that another health professional (including one regulated by a different governing body) has sexually abused a patient or client, the member must report this to the health professional’s governing body within 21 days. The name of the patient should not be included in the report unless the client consents to doing so. If the member learned of the abuse through a patient, the patient should be advised of the member’s reporting obligation before the member files a report;[71]
  • Unable to function safely: A nurse must report to the College if they believe another nurse is unable to function safely and that it would be in the public interest for the nurse to be restricted from practicing. This obligation does not apply to information that is confidential by reason of the other nurse being a patient, unless there is an imminent danger to the health or safety of a patient or the public.[72]

An employer must report to the College if they have terminated a nurse’s employment because of incompetence or incapacity.[73]

If the College receives a complaint regarding professional misconduct by a member, the Complaints Committee will carry out an investigation.[74]

After investigation, the Complaints Committee may:

  • Dismiss the complaint; or
  • Refer the complaint to the Discipline Committee (if it relates to misconduct); or
  • Refer the complaint to the Review Committee (if it relates to unfitness or incapability due to a medical condition).

The member’s registration may be suspended pending a decision by one of those committees if continued practice could be a danger to the public.[75] The Discipline Committee can make a range of orders, including orders to:[76]

  • Suspend the member’s registration;
  • Revoke the member’s registration;
  • Place restrictions or conditions on a member’s practice;
  • Issue a reprimand;
  • Issue a fine; or
  • Attempt to resolve the matter informally.

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 Family Services Act contains provisions relevant to confidentiality. It requires the identity of a person who reports abuse or neglect to be kept confidential.

  • 35.1(3) Except in the course of judicial proceedings, no person shall reveal the identity of a person who has given information under subsection (1) without that person’s written consent.
  • 35.1(4) Any person who violates subsection (3) commits an offence.[77]

5.2 Confidentiality of personal and health information

Exceptions under adult protection law

Under the Family Services Act,a professional person can disclose personal information to the Ministry of Social Development if they believe the adult is being abused or neglected. The professional is protected from action being taken against them if they report this in good faith.[78] As discussed above in section 3, professional persons include:

  • Workers in seniors’ residences;
  • Health care professionals;
  • Social workers; and
  • Anyone who has a duty of care towards elderly or disabled adults as a result of their employment.

Exceptions under privacy law

In New Brunswick, there are two pieces of legislation that outline privacy rights:

  • The Right to Information and Protection of Privacy Act applies to public bodies, such as government departments and agencies.[79]
  • The Personal Health Information Privacy and Access Act applies to personal health information used or collected by a custodian or agent, which includes health care professionals, health care facilities, and public bodies.[80]

The federal Personal Information Protection and Electronic Documents Act[81] also applies in New Brunswick. 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 provincial laws govern the manner in which personal information may be collected, used, and disclosed. Under these laws, personal information must be kept confidential, and 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.[82]

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

  • To protect the mental or physical health or the safety of any individual or group of individuals;[83]
  • To assist with a police investigation;[84]
  • To provide government services;[85] or
  • As required or authorized by another law.[86]

Under the Personal Health Information Privacy and Access 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;[87]
  • For the delivery, planning, and monitoring of health care;[88]
  • For investigating and disciplining a regulated health care professional;[89]
  • For a police investigation;[90] or
  • As required by another law.[91]

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.[92] 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;[93]
  • Where the innocence of an accused is at stake;[94] or
  • Where limited by law.

Other types of privilege include 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 New Brunswick sets out the duty of confidentiality and applicable exceptions in its Code of Professional Conduct. [95]

  • 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;
    • (b) required by law or a court to do so;
    • (c) required to deliver the information to the Law Society; or
    • (d) otherwise permitted by this rule.[96]

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

Future Harm / Public Safety Exception

  • 3.3-3A A lawyer must 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.
  • 3.3-3B 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 substantial financial injury to an individual caused by an unlawful act that is likely to be committed, and disclosure is necessary to prevent the injury.[97]

6. Criminal Prosecution Policy

While criminal law is primarily under the federal jurisdiction, New Brunswick’s Public Prosecution Operational Manual[98] provides guidance to public prosecutors. There are no policies directly covering elder abuse, but a few of the policies touch on aspects of elder abuse.

The Pre-Charge Screening policy states that prosecutions should be in the public interest, and lists factors that should be considered to determine if prosecution would be in the public interest. The factors include whether the victim:

  • Was vulnerable;
  • Has been put in considerable fear; or
  • Suffered personal attack, damage, or disturbance.[99]

The Indictments and Direct Indictments policy discusses when a direct indictment would be in the public interest, and lists factors which would indicate direct indictment is appropriate. Factors relevant to elder abuse that indicate the matter should be brought directly to trial include:

  • The age, health, or other circumstances relating to a witness require that the witness’s evidence be presented before the trial court as soon as possible;[100]
  • The lives, safety, or security of witnesses or their families may be in danger, and this danger can be reduced significantly by bringing the matter directly to trial;[101] and
  • There is a significant danger of psychological harm to a witness, and this danger can be reduced by bringing the matter directly to trial.[102]

The Victims policy discusses how public prosecutors should interact with victims during criminal prosecutions. The policy includes the following provisions:

  • Prosecutors should take steps to ensure that the victim has the opportunity to participate in the justice process.
  • Prosecutors should explain the role of the prosecutor and the prosecution process, prepare the victim for court, and provide such other information as may be required.
  • Prosecutors should inform victims of available victim services.
  • When the crime involves physical violence, prosecutors should consider the position of the victim before using alternative measures (instead of prosecution) to address the matter.
  • Prosecutors must take steps to protect the victim, including publication bans of the victim’s identity and protective measures.
  • Prosecutors must apply to the court for the witness to use a testimonial aid if a witness with a disability requests it. In other cases, prosecutors may consider factors, such as the age of the witness, disability, and the relationship between the witness and the accused in deciding whether to apply for use of a testimonial aid.[103]

The Witnesses policy discusses how public prosecutors should interact with witnesses during criminal prosecutions. This policy includes the following provisions:

  • Prosecutors should explain their role and the process to witnesses.
  • Prosecutors must consider whether a witness needs any aids or support to help them testify and feel safe doing so, such as providing affidavit evidence or a publication ban on the witness’s identity.
  • Prosecutors must eliminate barriers to witnesses testifying where there may be a disability or language barrier.
  • Prosecutors must be alert to the fact that victims of sexual offences are severely impacted, and prosecutors must consider their needs when testifying.
  • Prosecutors must be alert to the fact that victims of violent offences often feel a great amount of vulnerability and will need measures to ensure they feel safe testifying.[104]

The Intimate Partner Violence policy provides guidance for prosecutors working on cases involving intimate partner violence. This policy includes the following provisions:

  • Prosecutors should make all efforts to make sure the criminal process proceeds expediently.
  • If the abuser is not being charged, prosecutors should consider whether a peace bond is needed.
  • Prosecutors should consider whether they should oppose bail or request conditions be placed on release, such as a “no contact” provision.
  • Prosecutors must give victims and witnesses the opportunity to meet with them prior to trial to discuss the proceedings and their needs.
  • Cases of intimate partner violence should not be referred to alternative measures programs.[105]

7. Emergency Intervention Orders under the Intimate Partner Violence Intervention Act

The Intimate Partner Violence Intervention Act[106] outlines how a person who is experiencing intimate partner violence can obtain an emergency intervention order.

7.1 Definitions

A person can obtain an emergency intervention order if they are experiencing intimate partner violence. The Intimate Partner Violence Intervention Act defines intimate partner violence to include:

  • Psychological abuse;
  • Physical abuse;
  • Sexual abuse;
  • Financial abuse; and
  • Neglect.

A person must be (or have been) in an intimate personal relationship with the person who committed the abuse or neglect. Two people are considered to be in an intimate personal relationship if they are or were married, dating, or in a conjugal relationship (regardless of whether they have lived together at any time).

  • “intimate partner violence” means violence committed against a person by another person who is or has been in an intimate personal relationship with the person and includes the following:
    • (a) abusive, threatening, harassing or violent behaviour used as a means to psychologically, physically, sexually or financially coerce, dominate and control the other member of the relationship; and
    • (b) deprivation of food, clothing, medical attention, shelter, transportation or other necessities of life.
  • 2(2) A respondent who encourages or solicits another person to do an act which, if done by the respondent, would constitute intimate partner violence, is deemed to have done the act personally.[107]
  • “intimate personal relationship” means a relationship between two persons, regardless of whether they have lived together at any time,
    • (a) who are or have been married to each other,
    • (b) who are or have been in a conjugal relationship, or
    • (c) who are or have been in a dating or romantic relationship.[108]

7.2 Emergency intervention orders

How to get an order

A designated authority can grant an emergency intervention order if:

  • There has been or is likely to be intimate partner violence; and
  • The seriousness and urgency of the situation means that an order is necessary.

“Designated authority” refers to emergency adjudicative officers appointed by the provincial government. In deciding whether to grant the order, an emergency adjudicative officer must consider certain factors, including:

  • Any history of violence between the parties;
  • The nature and impact of the violence, whether it is repetitive or escalating;
  • The best interests of any children in the care of either party; and
  • Any particular vulnerability of the applicant such as age, family circumstances, disability, health, or economic dependence.[109]

Criminal charges do not have to be laid.[110]

The order can be in effect for up to 180 days.[111]

  • Emergency intervention order
  • 4(1) On application in accordance with section 3 and without notice to any other person, a designated authority may make an emergency intervention order if he or she determines on a balance of probabilities that
    • (a) intimate partner violence has occurred or is likely to occur, and
    • (b) the seriousness and urgency of the situation warrant the making of the order.
  • …
  • 4(3) In determining whether to make an emergency intervention order, a designated authority shall consider the following factors:
    • (a) any history of intimate partner violence committed by the respondent toward the applicant;
    • (b) the nature and impact of the intimate partner violence committed or likely to be committed by the respondent toward the applicant;
    • (c) whether the intimate partner violence is repetitive or escalating;
    • (d) whether the intimate partner violence is evidence of a pattern of coercive or controlling behaviour toward the applicant;
    • (e) the best interests of any children in the care and custody of the applicant or the respondent;
    • (f) threats against family members of the applicant, including threats of violence and threats of abduction;
    • (g) other previous acts of violence committed by the respondent, including intimate partner violence toward other persons and violence against animals;
    • (h) any mental health concerns involving the respondent;
    • (i) the current status of the intimate personal relationship between the applicant and the respondent, including any recent separation or intention to separate;
    • (j) a recent change in circumstances of the respondent or any other circumstances of the respondent that may increase the risk to the applicant, including the following:
      • (i) substance abuse;
      • (ii) employment or financial difficulties;
      • (iii) access to firearms or other weapons; and
      • (iv) release from incarceration;
    • (k) a particular vulnerability of the applicant or any circumstances of the applicant that may increase the risk to the applicant, including pregnancy, age, family circumstances, disability, health or economic dependence; and
    • (l) the applicant’s need for a safe environment to arrange for longer‑term protection from intimate partner violence.

All emergency protection orders must be reviewed by a judge, who has the power to confirm or vary an order or direct a hearing.[112] If having a public hearing would cause harm to the adult, the court can order that the hearing be held in private or order a publication ban on information about the order or hearing.[113]

If an order is made under the Family Services Act after an emergency intervention order is made, the Family Services Act order would take precedence if it conflicted with or changed anything included in the emergency intervention order.[114]

Who can apply for an order

The application for an emergency protection order can be made by the person experiencing intimate partner violence, or by the following people with the consent of the adult:[115]

  • Peace officer (such as a police officer);
  • Victim services worker;
  • Social worker from the Department of Social Development;
  • An outreach worker from a domestic violence outreach program;[116] or
  • An outreach worker, crisis intervener, or support worker employed by a transition house or second stage housing.[117]

Possible terms of an order

Emergency protection orders can include provisions (not a complete list):

  • Requiring the abuser to stay away from a location or person;
  • Requiring the abuser to not communicate with the abused person or another specified person (either directly or indirectly);
  • Granting the adult temporary exclusive occupation of the residence;
  • Granting the adult temporary possession of personal property;
  • Directing police to accompany a person to collect belongings;
  • Directing police to remove the abuser from the residence;
  • Restraining the abuser from dealing with the adult’s property;
  • Granting temporary care and custody of a child to the adult;
  • Directing police to seize weapons;
  • Restraining the abuser from committing further intimate partner violence; and
  • Any other terms the court considers necessary.[118]

8. Financial Abuse by Substitute Decision-Makers

8.1 Substitute decision-makers in New Brunswick

In New Brunswick, a substitute decision-maker could be:

  • An attorney under an enduring power of attorney (EPOA), chosen by the older adult;
  • A committee of the estate, appointed by the court under the Infirm Persons Act[119]; or
  • The Public Trustee as committee of the estate through a statutory process under the Mental Health Act.[120]

8.2 Attorneys under an EPOA

Appointing an attorney

An older adult can appoint one or more persons to be their attorney by granting an EPOA.

An EPOA can cover financial and property decisions, as well as personal care decisions.[121] The EPOA can limit the attorney’s authority to specified matters, or grant a general authority to make decisions on behalf of the adult. It can also include conditions, restrictions, and instructions with respect to the attorney’s authority.[122]

An EPOA for property can take effect immediately and continue when a person is incapable of making property and financial decisions. Alternatively, the EPOA for property can stipulate that it will not take effect until a later date, or until the person is incapable of making these decisions.[123] An EPOA for personal care can only take effect after the adult becomes incapable of making personal care decisions.[124]

Duties of an attorney

An attorney under an EPOA has several duties under the Act:

  • Act honestly and in good faith;[125]
  • Exercise reasonable care;[126]
  • Act within their authority;[127]
  • Consult with the older adult when making decisions;[128]
  • Make decisions in accordance with any instructions given by the adult when the adult had capacity. If there are no instructions, make decisions in line with the adult’s current wishes, if reasonable. If the wishes cannot be determined or are unreasonable, make decisions based on the adult’s values and beliefs. If these are not known, act in the adult’s best interests;[129] and
  • Keep records of all decisions and transactions made, and provide these records to the adult, monitor, other attorney, or executor of the estate upon request.[130]

Ending an Enduring Power of Attorney

An EPOA can be changed or ended in several ways:

  • An adult who has capacity makes changes to the EPOA;
  • An adult who has capacity revokes the EPOA by stating this in writing or destroying the document;[131]
  • The attorney resigns, dies, or is incapacitated or unwilling to act;[132]
  • A court order is issued preventing the attorney from contacting the adult;
  • The adult and the attorney are spouses and they separate (unless the EPOA provides otherwise);
  • The court orders the EPOA ended;[133]
  • The court appoints a committee of the estate or of the person under the Infirm Persons Act or the Mental Health Act;[134] or
  • The adult dies.[135]

The attorney, monitor, Public Trustee, or an interested person can apply to the court to request changes to or revocation of the EPOA, including changing the attorney. The court will vary an EPOA only if:

  • The adult lacks capacity to make the change themselves;
  • The change is justified by circumstances that the adult likely did not foresee; and
  • The change is in the best interests of the adult.[136]

If a financial institution suspects an attorney is not complying with their responsibilities as attorney, the institution can refuse to comply with the attorney’s requests and freeze the adult’s account. The bank must notify the adult, monitor (if any), and other attorneys appointed in the EPOA (if any).[137]

8.3 Committee of the Estate or of the Person

Appointing a committee

An older person would meet the definition of a “mentally incompetent person” under the Infirm Persons Act if they have “a condition of arrested or incomplete development of mind,” or a mental disorder, such that they require care for their protection or for the protection of their property.[138] Any of the following individuals can apply to the court to have an adult declared mentally incompetent:

  • The Attorney General;
  • The Public Trustee;
  • The spouse, relative, or friend of the adult; 
  • Any person who is concerned for the well-being of the adult;[139] or
  • A creditor.

The court has the power to make orders for the custody of mentally incompetent persons and the management of their estates.[140] The court can authorize a committee of estate to make any financial or property decisions that the older adult could have made if they were competent.[141]

The Infirm Persons Act also applies to adults who, while not mentally incompetent, are incapable of managing their affairs or providing for their personal care, because of “mental or physical infirmity arising from disease, age, or other cause, or because of habitual drunkenness or use of drugs.”[142] For such adults, the court may appoint a committee of estate and/or a committee of the person to act on behalf of the adult.[143]

Duties of a committee

A committee of estate must file with the court an inventory of the adult’s assets and property within 6 months of being appointed.[144] The committee must update the inventory with the court if more property is found.[145]

Ending a committeeship

A committeeship can be ended or changed in several ways:

  • The adult regains decision-making capacity;[146]
  • The court changes who is committee of the estate;
  • The court changes the terms of the committeeship; or
  • The court ends the committeeship.[147]

8.4 Public Trustee as statutory committee of the estate

Appointing the Public Trustee

If an older adult is admitted to a psychiatric facility and the attending psychiatrist determines that the adult is not able to manage their estate, the psychiatrist will issue a certificate of incompetence and forward the certificate to the Public Trustee. The Public Trustee becomes the committee of the estate upon receipt of the certificate. The Public Trustee will not be named committee if the adult has a committee under the Infirm Persons Act or an attorney under an EPOA.[148]

The Public Trustee can make all the decisions about estate matters that the adult could have made.[149]

The Public Trustee must account for any decisions they make as the committee.[150]

Ending a statutory commiteeship

A statutory committeeship can be ended in several ways:

  • The psychiatrist cancels the certificate of incompetence;[151]
  • The adult revokes a voluntary committeeship by the Public Trustee;
  • The adult is discharged and can manage their estate; or
  • The adult is discharged and three months have passed.[152]

8.5 The role of the PGT in financial abuse

The adult protection regime in New Brunswick does not include financial abuse, so the PGT’s role in financial abuse is limited. The PGT can act as a committee of the estate or attorney under an EPOA.[153]

9. Employment Protections

9.1 Whistleblower protections

The Family Services Act protects professional persons who report abuse and neglect or provide information to an investigator from action being taken against them, as long as they act in good faith.

  • 35.1(2) No action lies against a professional person who in good faith provides information to the Minister under subsection (1).
  • 35.1(2.1) No action shall be commenced against a person in relation to the providing of information to the Minister under this section except with leave of the court.
  • 35.1(2.2) An application for leave shall be commenced by a Notice of Application served on the respondent and the Minister in accordance with the Rules of Court.
  • 35.1(2.3) On an application for leave, leave shall be granted only if the applicant establishes, by affidavit or otherwise, a prima facie case that the person who provided the information to the Minister did not provide the information in good faith.[154]

9.2 Statutory employment leave

Adults who are experiencing domestic violence, intimate partner violence, or sexual violence may have access to an employment leave.[155] The leave gives employees up to 10 days of leave that can be taken intermittently, and up to 16 weeks of leave which must be taken in one continuous period, in each calendar year.[156] The first five days of leave are paid leave.[157] The purpose of the leave must be to obtain services including:

  • Medical care;
  • Counselling;
  • Housing;
  • Victim services;
  • Legal advice;
  • To seek criminal remedies; or
  • For any other purpose related to or resulting from the violence.[158]

To qualify for this leave the employee must have been working for their employer for at least 90 days.[159] The employee must notify their employer as soon as possible that they are taking the leave and how long they will be on leave for.[160] Employees must inform the employer in writing why they are taking the leave.[161] The employer must keep the documentation received confidential, unless they are required to disclose it under the law or another employee needs to know the information to conduct their employment duties.[162]

10. Social Assistance Policies

In New Brunswick, the Social Assistance Policy Manual contains a few provisions relevant to elder abuse.[163]

People who are eligible for social assistance may be eligible for special benefits or supplements to provide additional funding on a one-time or ongoing basis. Special benefits are given preferentially to people who are in the priority group and in an emergency situation. The priority group includes women fleeing abuse.[164] People who are living in a transition house are eligible for a Comfort and Clothing allowance. Anyone who has experienced abuse and who is “in transition” (staying in a transition house or living in other safe accommodation) is eligible for the Transitional Assistance rate for up to nine months after leaving the transition house.[165] The policy also allows social assistance to be issued in an urgent situation if the applicant cannot prove their identification, income, or residence.[166]

The policy manual states that sponsored immigrants are not eligible for social assistance. If the sponsor is not providing financial support, the Department must contact the sponsor.[167]

11. Key Contacts

Reporting Elder Abuse

Adult Protection Program

The Adult Protection Program of the Department of Social Development provides services to seniors and adults with disabilities who are victims of abuse or neglect.

Call your closest regional office for more information. See details at www2.gnb.ca/content/gnb/en/services/services_renderer.9335.Adult_Protection.html#serviceLocation

For emergency requests, such as reporting elder abuse, call: 1-833-733-7873 (toll-free)

Government Agencies

Department of Social Development (Seniors)

New Brunswick now has a toll-free number for seniors, their families, and caregivers who are looking for information on government programs and services.

Seniors and Healthy Aging Secretariat

The mandate of the Aging Secretariat is to develop an implementation framework for the Aging Strategy and monitor progress towards execution of the actions in the strategy.

Community Organizations

New Brunswick Senior Citizens’ Federation

The New Brunswick Senior Citizens’ Federation is a mutual, bilingual, non-for-profit organization devoted to the advancement of issues related to the well-being of all seniors aged 50 years and over in New Brunswick. It provides programs and services, information and training, and acts as a spokesperson for senior citizens.

451 Paul Street, Suite 209G, box 23
Dieppe NB E1A 6W8

Beausejour Family Crisis Resource Centre Inc

The Beausejour Family Crisis Resource Centre is a counselling and support centre open to all individuals experiencing a crisis, mental health issue, or difficult life circumstance, as well as for victims of family violence and their children.

432 Main Street
Shediac, NB
E4P 2GS

Chimo Helpline Inc

Chimo is a provincial crisis phone line available 24 hours a day, 365 days a year. It aims to provide crisis intervention, referrals, and vital information in a caring, confidential manner.

Chimo Helpline Inc.
P.O. Box 1033
Fredericton, NB
E3B 5C2

Fredericton Legal Advice Clinic

The Fredericton Legal Advice Clinic Inc. is a registered not-for-profit based in Fredericton, NB. If a client opens a file with the clinic, a student research volunteer can offer the following:

  • Give legal information;
  • Assist with applications to the Alternative Measures Program; and  
  • Provide assistance with finding a lawyer or community group to support the client.

Public Legal Education and Information Service of New Brunswick

This is a non-profit organization whose mandate is to develop bilingual educational products and services about the law for the public in order to promote access to the legal system. Its website has a range of materials on topics such as abuse and violence, going to court, and estate planning.

P.O. Box 6000, Fredericton
New Brunswick
Canada
E3B 5H1

Endnotes

[1] SNB 2004, c 49.

[2] SNB 1997, c 69.

[3] SNB 1986, c 90.

[4] SNB 1988, c 75.

[5] SNB 2017, c 35.

[6] SNB 1977, c 60.

[7] SNB 2013, c 49.

[8] SNB 1981, c 87 [MA].

[9] SNB 1991, c 67.

[10] SNB 2004, c 45.

[11] SNB 2008, c M-11.5.

[12] SNB 2019, c 23.

[13] SNB 1985, c 73.

[14] SNB 2009, c 10.

[15] SNB 2014, c 9.

[16] SNB 1984, c 71 [NA].

[17] SNB 1988, c 76.

[18] SNB 2002, c 58.

[19] SNB 2004, c 50.

[20] SNB 2006, c 33.

[21] SNB 2010, c 7.

[22] SNB 1983, c 101.

[23] SNB 2017, c 36.

[24] SNB 2009, c 18.

[25] SNB 1987, c 71.

[26] SNB 1980, c F-2.2 [FSA].

[27] SNB 2017, c 5 [IPVIA].

[28] NB Reg 2018-34 [IPVIA Regulation].

[29] SNB 2005, c P-26.5 [PTA].

[30] RSNB 1973, c I-8 [IPA].

[31] SNB 2019, c 30 [EPOAA].

[32] NB Reg 2020-43 [EPOAA Regulation].

[33] RSNB 1973, c M-10 [MHA].

[34] SNB 2009, c P-7.05 [PHIPAA].

[35] SNB 2009, c R-10.6 [RIPPA].

[36] SNB 1982, c E-7.2 [ESA].

[37] NB Reg 2018-81 [DVIPVSVL Regulation].

[38] FSA, supra note 26.

[39] Ibid, Preamble, para 10.

[40] Ibid, s 36.1.

[41] Ibid, s 36.1.

[42] Ibid, s 1.

[43] Ibid.

[44] Ibid, s 34.

[45] Public Legal Education and Information Service of New Brunswick, “Preventing Abuse and Neglect of Seniors”, at i. Social Development, online: <www.legal-info-legale.nb.ca/en/index.php?page=preventing_abuse_and_neglect_of_seniors>.

[46] FSA, supra note 26,s 34.

[47] Ibid, s 35.1(1)-(2.1).

[48] Ibid, s 35.1(5).

[49] Ibid, s 35(2.1).

[50] Ibid, s 37.1(1).

[51] Ibid, s 35(1).

[52] Ibid, s 35(3).

[53] Ibid, s 36.

[54] Ibid, s 37(1).

[55] Ibid, s 37(1.1).

[56] Ibid, s 37.1.

[57] Ibid, s 39(1).

[58] Ibid, s 40.

[59] Ibid, s 39(1).

[60] Ibid, s 39(4).

[61] Ibid, s 39.

[62] MA, supra note 8.

[63] Ibid, s 52.2.

[64] Ibid, s 52.3.

[65] Ibid, s 57(5).

[66] Ibid, s 55.2.

[67] Ibid, s 57(8).

[68] Ibid, s 59(14).

[69] Ibid, s 59(14).

[70] NA, supra note 16.

[71] Ibid, s 28.2.

[72] Ibid, s 42.

[73] Ibid, s 15(1)

[74] Ibid, s 28.

[75] Ibid, s 29(9).

[76] Ibid, s 30.

[77] FSA, supra note 26,s 35.1(3), (4).

[78] Ibid, s 35.1.

[79] RIPPA, supra note 35,ss 1, 2.

[80] PHIPAA, supra note 34, ss 1, 3.

[81] Personal Information Protection and Electronic Documents Act, SC 2000, c. 5.

[82] RIPPA, supra note 35,s 46(1); PHIPAA, supra note 34, ss 34, 37.

[83] RIPPA, ibid,s 44(1)(i).

[84] Ibid, s 44(1)(d).

[85] Ibid, s 44(1)(c.1), (c.2).

[86] Ibid, s 46(1)(b), (c).

[87] PHIPPA, supra note 34, s 39(1)(a).

[88] Ibid, ss 37, 38.

[89] Ibid, s 40.

[90] Ibid, s 41.

[91] Ibid, s 42.

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

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

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

[95] Law Society of New Brunswick, Code of Professional Conduct, Fredericton: Law Society of New Brunswick, 29 June 2018, online: <lawsociety-barreau.nb.ca/en/regulation/acts-and-rules/>.

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

[97] Ibid, ch 3 (3.3-3A), (3.3-3B).

[98]  New Brunswick, Justice and Office of the Attorney General, Public Prosecution Operational Manual (Fredericton: Office of the Attorney General, 2015), online: <www2.gnb.ca/content/gnb/en/departments/jag/attorney-general/content/operational_manual.html>.

[99] Ibid, Chapter II, Policy 11 “Pre-Charge Screening” (21 November 2017) at 2.2.1.

[100] Ibid, Chapter II, Policy 13 “Indictments and Direct Indictments” (1 September 2015) at 2.3.1.

[101] Ibid.

[102] Ibid.

[103] Ibid, Chapter V, Policy 33 “Victims” (1 September 2015).

[104] Ibid, Chapter V, Policy 32 “Witnesses” (1 September 2015).

[105] Ibid, Chapter VI, Policy 45 “Intimate Partner Violence” (1 September 2015).

[106] IPVIA, supra note 27.

[107] Ibid, s 2.

[108] Ibid, s 1.

[109] Ibid, s 4.

[110] Ibid, s 4.

[111] Ibid, s 5.

[112] Ibid, s 8.

[113] Ibid, s 13.

[114] Ibid, s 12.

[115] Ibid, s 3; IPVIA Regulation, supra note 28,s 3.

[116] IPVIA Regulation, ibid,s 3.

[117] Ibid, s 3(2)(f).

[118] IPVIA, supra note 27, s 4(5).

[119] IPA, supra note 30.

[120] MHA, supra note 33.

[121] EPOAA, supra note 31,s 3.

[122] Ibid, s 7.

[123] Ibid, ss 3, 8.

[124] Ibid, s 9.

[125] Ibid, s 12(1)(a).

[126] Ibid, s 12(1)(b).

[127] Ibid, s 12(1).

[128] Ibid, s 12(2).

[129] Ibid, s 12(2).

[130] Ibid, s 17; EPOAA Regulation, supra note 32, s 4.

[131] EPOAA, ibid,s 5.

[132] Ibid, s 10.

[133] Ibid, s 11.

[134] Ibid, s 11, MHA, supra note 33, s 46.

[135] EPOAA, ibid,s 11.

[136] Ibid, s 27.

[137] Ibid, s 18.

[138] IPA, supra note 30, s 1.

[139] Ibid, s 5.

[140] Ibid, s 3.

[141] Ibid, s 15.

[142] Ibid, s 39(1).

[143] Ibid, s 39.

[144] Ibid, s 10.

[145] Ibid, s 10.

[146] Ibid, s 9.

[147] Ibid, s 3.

[148] MHA, supra note 33, ss 36, 38.

[149] Ibid, s 35.

[150] Ibid, s 52.

[151] Ibid, s 39.

[152] Ibid, s 41.

[153] PTA, supra note 29, s 6.

[154] FSA, supra note 26, s 35.1.

[155] ESA, supra note 36, s 44.027.

[156] DVIPVSVL Regulation, supra note 37,s 3.

[157] Ibid, s 5.

[158] Ibid, s 4.

[159] Ibid, s 3.

[160] ESA, supra note 36,s 44.027.

[161] DVIPVSVL Regulation, supra note 37, s 6.

[162] Ibid, s 7.

[163] New Brunswick, Department of Social Development, Social Assistance Policy Manual, online: <www2.gnb.ca/content/gnb/en/departments/social_development/policy_manual.html>.

[164] Ibid, at s 3.9 – Special Benefits/Supplements.

[165] Ibid, at s 1.23 – Transition House.

[166] Ibid, at s 1.18 – Section 10(2).

[167] Ibid, at s 1.9 – Immigrants.

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