Emergency Protection Orders in Alberta
Gurjant Bains, Calgary Family Lawyer
According to the Government of Canada (2022), an estimated 44% of women aged 15 and older (about 6.2 million women) have experienced some form of abuse in their intimate relationships. A 2019 study also revealed that over 22,000 children were victims of family violence. Though these numbers are alarming, there are legal protections available to help those affected.
In 1999, Alberta enacted the Protection Against Family Violence Act (the “Act”), which empowered justices to issue Emergency Protection Orders (“EPOs”) and King’s Bench Protection Orders. The Act was part of Alberta’s commitment to safeguard against family violence, streamline responses to family violence issues, hold people accountable, and prevent future incidents by breaking cycles of family violence. This blog explores what legally constitutes 'family violence' under the Act and how those at risk can seek the urgent protection they need.
What Constitutes "Family Violence"?
To apply for an EPO, it is important to first understand what the law considers family violence. Section 1(1)(e) of the Act defines family violence as:
- Any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member.
- Any act or 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.
- Stalking.
To obtain an EPO, the person seeking protection from family violence (i.e. the claimant) must persuade a justice that family violence has taken place and there's a reasonable belief it will resume or recur. They must also demonstrate that, due to the seriousness or urgency of the situation, immediate protection is warranted.
If a claimant is unable to establish the required seriousness or urgency, they may opt to pursue a King's Bench Protection Order instead. However, this route would require providing notice to the opposing family member. For more information on these types of orders, check out our FAQ on EPOs.
What is an EPO?
An EPO is a court-issued order that provides immediate protection in situations of urgent need. The protections vary, but typically include:
- No-contact orders.
- Limitations on attending certain places like family residences, workplaces, or schools.
- Confiscation and safekeeping of weapons.
- Restrictions on communication between the parties involved.
Essentially, the justice has the authority to impose any necessary measures to ensure the safety of the person seeking protection.
Who is Considered a Family Member Under the Act?
EPOs are specifically designed to protect family members. Therefore, the claimant can only utilize these protections when the perpetrator is a family member, defined under the Act as:
- Persons who are or have been married to one another, who are or have been adult interdependent partners of one another or who are residing or have resided together in an intimate relationship.
- Persons who are the parents of one or more children, regardless of their marital status or whether they have lived together at any time.
- Persons who are related to each other by blood, marriage or adoption or by virtue of an adult interdependent relationship.
- Any children in the care and custody of a person referred to in subclauses (i) to (iii).
- Persons who reside together where one of the persons has care and custody over the other pursuant to an order of the court.
Applying for an EPO
EPO’s are specifically designed to address immediate safety concerns arising from incidents of family violence. They cannot be manipulated as tools to gain an advantage in divorce proceedings.
To obtain an EPO, you must appear before a justice, either by filing an application independently or with the assistance of a lawyer, or through the support of local police. Importantly, the application for an EPO can be made without notice to the other party (i.e. on an ex parte basis).
Before a justice can issue an EPO, they must consider several factors, including:
- History of family violence.
- Controlling behavior by the respondent.
- Repetitive or escalating violence.
- Immediate danger to persons or property.
- Vulnerability of elderly claimants.
- Impact of family violence on children.
- Best interests of the claimant and any child in their care.
- Claimant's need for long-term protection from family violence.
These factors guide justices in deciding whether an EPO should be granted.
Responding to an EPO
Upon granting an EPO, the order and any supporting documents are filed by the court and sent to the Court of King's Bench – a higher level of court than the Alberta Court of Justice, where the EPO is initially heard. Court transcripts from the EPO hearing are also forwarded and serve as the main evidence supporting the claimant’s case.
The claimant must then serve the EPO to the respondent and obtain an affidavit of service to prove the EPO has been served.
After being served, the respondent can respond to the claims raised in the initial EPO hearing. As the court transcripts are key evidence in the claimant’s case, the respondent should obtain a copy. Instructions on how to acquire these transcripts are included in the notice accompanying the EPO. Alternatively, the respondent can visit the court and consult with a clerk to obtain the necessary documents.
If the respondent agrees with the transcript, they are not required to provide a response. If the respondent disagrees with the transcript, they can present their own evidence countering the allegations by submitting an affidavit, which is a sworn statement. If there are credibility issues, meaning there is a “he said/she said” type situation, the court may direct the parties to an oral hearing prior to deciding what needs to be done with the EPO.
The Review Hearing
After an EPO is granted, a review hearing is scheduled at the Court of King’s Bench to reassess the circumstances and conditions of the order. This hearing must be scheduled within nine days of the EPO being granted. Often, the responding party requires an adjournment - a formal request to the court to reschedule the review hearing to a later date - to provide enough time to respond to the allegations or to retain a lawyer to represent them.
At the review hearing, the justice may:
- Revoke the order, which essentially means to cancel it.
- Direct an oral hearing, where the court will need to hear oral evidence from the parties.
- Confirm the order, which essentially means they confirm the EPO was properly ordered, remains necessary and should remain in place. If the order is confirmed, it will be extended and filed at the Court of King’s Bench.
- Revoke and grant a new order.
In many cases, parties may agree to a mutual no contact order before or at the review hearing. This order typically prohibits any contact between the parties and may also restrict their presence at specific locations. Additionally information on these types of orders can be found in our FAQ on mutual no contact orders in Alberta.
Case Highlights
The following cases offer insights into the factors a justice may consider when deciding on an EPO that has been challenged or disputed by the parties involved:
In the case NH v HR, 2022 ABKB 761, the court stated that evidence of family violence is required for an EPO to be confirmed. The court must be convinced, based on this evidence, that violence will likely continue or resume. The order should be granted based on the seriousness or urgency of the situation. Once all required factors were met in this case, the court weighed the factors supporting the EPO against the potential impacts on the respondent's liberty and stigma associated with protection orders to determine the appropriateness of the EPO. It’s important to note that even when all factors are met, the court retains the discretion to revoke the EPO if the impact on the respondent’s liberty is deemed disproportionate to the circumstances.
In DCM v TM, 2021 ABCA 127, the Alberta Court of Appeal stressed the need for a balanced approach in granting restraining orders and protecting vulnerable partners without infringing unreasonably on a spouse's liberty.
Finally, the court of appeal in Schaerer v. Schaerer, 2021 ABCA 104, emphasized that violating an EPO can lead to contempt of court and potential arrest. It also reinforced that protection orders should be reasonable in scope and duration.
At Crossroads Law, we are committed to providing you with the support and guidance needed to address such serious matters. Whether you're seeking to obtain an EPO or need to challenge one, our experienced team of family lawyers is here to help you every step of the way. We understand the sensitivity and urgency of these issues and are committed to protecting your rights and wellbeing. Don’t face this alone—book a free 20-minute consultation today to explore your options and ensure your safety and legal rights are upheld.
