Have you been served with an Emergency Protection Order or do you think that you require an Emergency Protection Order? Emergency Protection Orders (EPOs) can be issued pursuant to the Protection Against Family Violence Act RSA 2000 c P-27 ("the Act"). Pursuant to this Act, an EPO can be granted by a Judge of the Provincial Court or a Justice of the Peace, on an Application without notice to the Respondent, if the Judge or Justice of the Peace determines:
- That family violence has occurred;
- That the Claimant has reason to believe the Respondent will continue or resume carrying out family violence; and
- By reason of seriousness or urgency, the Order should be granted to provide the immediate protection of the Claimant and other family members who reside with the Claimant.
Family violence has been defined to include:
- Any intention or reckless act or omission that causes injury or property damage and that intimidates or harms a family member;
- Any act of threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member;
- Forced confinement;
- Sexual abuse; and
The Act does specifically define that using corrective force towards a child that is reasonable under the circumstance is not family violence. If a person believes family violence has occurred, they can attend by themselves at the Court House and request that an Emergency Protection Order be granted. After speaking with the Clerks at the Court House, you will be directed to speak to Duty Counsel who will perform an initial assessment of the case. If they believe an EPO may be warranted they will then bring the matter before a Judge or Justice of the Peace, typically on the same day. That Applicant will have to provide oral evidence to the presiding Judge or Justice of the Peace to outline how they believe family violence has occurred and explain why an EPO is warranted. Some of the factors the Judge or Justice of the Peace will look at are:
- the history of family violence by the respondent toward the claimant and other family members;
- whether there is or has been controlling behaviour by the respondent towards the claimant or other family members;
- whether the family violence is repetitive or escalating;
- the existence of any immediate danger to persons or property;
- the vulnerability of elderly claimants;
- the effect of exposure to family violence on any child of the claimant or on any child who is in the care and custody of the claimant;
- the best interests of the claimant and any child of the claimant or any child who is in the care and custody of the claimant;
- the claimant's need for a safe environment to arrange for longer term protection from family violence.
If the Judge or Justice of the Peace believes an Emergency Protection Order is appropriate, it will be issued immediately and served on the Respondent by the Police. Since the matter was heard without the Respondent having an opportunity to submit any evidence, the matter is then forwarded on to the Court of Queen's Bench for a Review, typically 10 days after the initial EPO was granted. Until the Review, the terms of the EPO are in full effect.
In most circumstances EPOs will restrain the Respondent from coming to the Applicant's place of residence, place of work, and being within a certain distance of the Applicant. It will additionally restrain the Respondent from contacting the Applicant, either directly or indirectly. EPOs may also cover other individuals who reside with the Applicant, including minor children. Until an EPO is reviewed by the Court of Queen's Bench previous parenting Orders will be suspended if the EPO applies to any minor children.
In front of the Court of Queen's Bench, both parties are to be present and the Court can determine if the Emergency Protection Order should stand, if the Emergency Protection Order should be dismissed, or if the matter should go to an oral evidence Hearing where both parties are able to submit evidence.
At Soby Boyden Lenz LLP we can help provide advice in seeking an Emergency Protection Order as well as defending you if you have had an Emergency Protection Order issued against you. It is important to know your rights and if an Emergency Protection Order is appropriate in the circumstance, or not. There are alternatives to Emergency Protection Orders which may be more appropriate in the circumstances. To know your rights call Soby Boyden Lenz LLP at 403-262-0000 to set up a consultation with one of our experienced lawyers.