Protection Orders in Dangerous Circumstances - LawNow Magazine

Protection Orders in Dangerous Circumstances

When trying to deal with family violence, everything can feel overwhelming, especially navigating the legal system.  Victims of violence sometimes require a protection order that provides for no contact between them and the perpetrator of violence.  There are several legal remedies available including:

  • criminal charges and conditions;
  • Emergency Protection Orders (EPOs);
  • Queen’s Bench Protection Orders (QBPOs);
  • Restraining Orders; and
  • no contact conditions in other family law orders.

Family Law ColumnFactors such as police intervention, the parties’ relationship, the nature of the violence, and the degree of urgency all play a part in choosing the best type of order.

First, a victim of violence must decide if a protection order is even necessary.  Orders that prevent people from doing things they are normally free to do, such as travel about and communicate with other people (orders that restrict someone’s liberty) are taken very seriously by judges.  It is expected that victims also explore non-legal options to protect themselves. This doesn’t mean that victims need to turn their lives upside down and go on the run; after all, it is the perpetrator who is acting inappropriately and blame should only rest on that person.  However, victims should take other steps to keep themselves safe, in addition to seeking legal remedies, such as blocking phone and social media contact with the perpetrator.  Sometimes these steps are effective in stopping the violence.  However, if they prove to be ineffective, or if there is no safe alternative step, then seeking a court order will be appropriate.

Second, it is a basic rule of fairness that people should be given notice that an order is being made against them and they should have the opportunity to respond.  There are always (at least) two sides to every story.  Only in very limited circumstances should a judge make an order without notice to the other party.  Those who experience family violence often require court orders for other matters such as parenting time or financial support because these issues are usually intimately connected.  In these cases, no contact conditions can be combined with parenting or support orders. Such circumstances may include where it is impractical because of an emergency or when giving notice would put the victim in a dangerous situation.  If it is possible to safely give notice to the perpetrator of violence, then notice should be given.  Generally, if the perpetrator has a lawyer, notice, even if it is very short, should be given to that lawyer.

Most acts of violence are criminal offences, so a victim should contact the police and see what assistance they can offer.  If charges are laid, often the perpetrator will be subject to conditions not to contact the victim.  These conditions may be enough for the victim and no further legal remedies may be required.  The police and parole/probation officers will enforce and monitor these conditions.  However, there are many reasons why police may not be able to lay a charge in the first place or, they may not be able to put no contact conditions in place.  So, it may be appropriate for a victim to instead, or in addition, obtain an order under civil/family law.

Emergency Protection Orders (EPOs) and Queen’s Bench Protection Orders (QBPOs) in Alberta

The Alberta Protection Against Family Violence Act creates two types of orders, EPOs and QBPOs.  This law strictly defines “family members” and “family violence”.  If a victim’s situation does not fit into these definitions, they should apply for a different type of order.  This does not mean that their experiences do not qualify as abusive or that they don’t need protecting, just that they need a different order.

The definition of family members covers all family relationships of blood, marriage, or adult interdependent relationships, including unmarried people who have a child together.  It also covers unmarried couples so long as they lived together in an intimate relationship.  It does not cover couples who are dating but never lived together, friends, or roommates who are not intimately involved.

Family violence under this legislation is limited to acts or omissions such as:

  • acts that cause injury or property damage and that intimidates or harms a family member;
  • threats that intimidate a family member by creating a fear of property damage or injury to a family member;
  • forced confinement;
  • abuse; and
  • stalking.

Other types of violence, such as verbal abuse (that does not threaten property damage or injury), are not included in the definition of violence under this legislation.  Also, threats regarding custody and access of children are not included.

EPOs are granted without notice to the other party, so they should only be sought when giving notice would be unsafe.  There will be a review hearing set for the other party to respond. Only in very limited circumstances should a judge make an order without notice to the other party.  Such circumstances may include where it is impractical because of an emergency or when giving notice would put the victim in a dangerous situation. If it is possible to give notice, then the claimant should seek a QBPO.

EPOs and QBPOs are enforced by the police.

The Edmonton Protection Order Program and Calgary Protection Order Program can assist victims of violence who wish to apply for an EPO.

Retraining Orders

Restraining Orders are granted at the discretion of a judge and are not limited by strict definitions of family members and violence.  A judge must simply be convinced that the order is necessary in the circumstances.  The terms of the order and how it is enforced (by the police or further court applications) is up to the judge.  Restraining Orders can be applied for without notice if it is not safe to do so.  However, notice should be given if it is possible.  Whether or not the Restraining Order applies to family members will affect in which court the application is made.  The Family Law Information Centres (FLIC) and Law Information Centres (LINC) around the province can assist with Restraining Order applications.

Other Orders

Those who experience family violence often require court orders for other matters such as parenting time or financial support because these issues are usually intimately connected.  In these cases, no contact conditions can be combined with parenting or support orders.  As with restraining orders, there are no strict definitions of violence.  The parties, possibly with the help of their lawyer, or the judge will set the terms of the order that fit the situation and set out the consequences of not following the order.

 

Speak Your Mind

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


A Publication of CPLEA

Font Resize
Contrast