Please see our latest blog on Protection Orders and Family Violence, written by Anoushka P. Gandy
Protection Orders and Family Violence
Are you concerned for your safety? Have you been in an abusive and toxic environment? Have you experienced family violence? If so, the team at Wells Family Law can help.
If family violence is an issue, you are eligible to apply for a Protection Order. A Protection Order can be applied and will limit the contact the other party can have with you and/or your children. In order to successfully apply for a Protection Order, the events of family violence must have already occurred and continue to occur. Protection Orders cannot be granted on the risk of a family violence situation.
There are two types of Protection Orders, these include Emergency Protection Orders and Queen’s Bench Protection Orders:
1. An Emergency Protection Order (“EPO”) is granted on an immediate and emergency basis and there must be family violence present in some capacity. The definition of family violence is defined in the Protection Against Family Violence Act and includes physical abuse, threats, intimidation, forced confinement, sexual abuse, stalking and coercive or controlling behavior.
An EPO can only be confirmed if some of the elements of the EPO test are met. A Judge cannot and will not grant an EPO or continue an EPO order out of an abundance of caution, meaning they cannot continue or grant an EPO due to the future risk of something happening.
The Alberta Court of Appeal in DCM v TM, 2021 ABCA 127 came out with a decision explaining the test to obtain an EPO and the requirements for a Judge when reviewing the EPO. These include the following:
1. Family violence has occurred;
2. A belief that the violence will continue; and
3. There is a sense of urgency or emergency.
When the Judge is making a decision, they will consider a number of factors stated in the Protection Against Family Violence Act and DCM v TM, 2021 ABCA 127 Court of Appeal case, including but not limited to the history of family violence, if the violence is repetitive or escalating, if there is immediate danger, the exposure to family violence on any of the children, the best interests of the claimant or any child involved, and long term protection.
An EPO will be granted when family violence has happened, continued, or will resume; and immediate protection is needed. Usually, an EPO will provide protection for you against the other party and allow them to stop contacting you, coming to your home or workplace, and other venues you attend. An EPO is only granted in family violence situations and are in effect for a one-year period. After the one-year period, you can reapply for the EPO to continue, and it can be reviewed at that time.
EPO’s are always granted in court on a first instance and ex-parte basis (without notice to the other party). Because the EPO is granted on an ex-parte basis, the court must also set a Review Hearing within 10 days of the order being granted. This allows the other party the opportunity to appear and respond to the allegations made against them. At the Review Hearing, the Judge will either confirm the EPO, discontinue the EPO, or will set the matter for a Viva Voce Hearing (oral hearing) in court, where each party will have a chance to orally provide evidence.
2. Queen’s Bench Protection Order
These Protection Orders can have the same effects and boundaries as an EPO. However, are usually not as urgent as EPO’s and are not granted on an emergency basis. The application is also not ex-parte and is done with notice to the other party. These orders apply to people who’ve lived together in a relationship or married, and you must be worried for your safety. These are also situations where you feel that you are not in any danger by giving the other party notice.
Restraining Orders are in place for three months or more if necessary and disobeying this order can lead police enforcement or even an arrest.