How do I get a restraining order in Alberta during COVID-19?
By Mat Wirove, Calgary Family Lawyer
It is now clear that incidences of domestic violence seem to be increasing during COVID 19. Unfortunately, escaping from an abusive partner is more difficult when there are restrictions on travel and physical contact between people. Moreover, the Alberta courts have limited what can be heard in court as a family law application. Fortunately, restraining orders are considered urgent applications which may be filed with the courts. According to the Alberta Courts, the definition of an emergency or urgent family law hearing includes:
- Orders where there is a risk of violence or immediate harm to one of the parties or a child;
- Orders where there is a risk of removal of a child from the jurisdiction; and
- Emergency Protection Order reviews.
It is also important to understand that there is a difference between an Emergency Protection Order, and a Restraining Order. An Emergency Protection Order relates specifically to family violence, which is defined in the Protection Against Family Violence Act, and includes:
- 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, and
- Stalking.
Therefore, if there is violence, property damage, or threats of violence or property damage, perpetrated by a family member, an Emergency Protection Order or can be sought.
A Restraining Order, on the other hand, is a remedy that can protect people who are dealing with violence or threats made by someone who is not a family member. A Restraining Order can be sought against anyone who is causing you to fear for your safety. This can include all the forms of family violence, as well as other behaviour that causes you to fear for your safety, like stalking or harassment. It should be noted that a Restraining Order cannot be used to remove an abusive person from a residence they have the legal right to live in, only an Emergency Protection Order or Queen’s Bench Protection Order can do that.
Moreover, it should be noted that, just because your application is for a Restraining Order and fits into the designated matters the Court will hear, you are not guaranteed leave to bring your application. Each request for an emergency hearing during the pandemic affecting the availability of the Court to hear cases will be determined on its merits.
Any request should be submitted the online Emergency/Urgent Hearing Request Form at https://albertacourts.ca/qb/court-operations-schedules/urgent. When filling in this form provide as much detail as possible.
Upon receipt of the request, the Designated Court Coordinator will send the parties or their family lawyers an email confirming receipt of the request. A triage Justice or Master will review the request and make a determination whether it meets the Court’s requirements for a family law matter to be heard on an urgent basis. If it is found that a hearing is required, you will be provided a hearing date and details for filing and service of your supporting materials. This will also include a template form of Order. You will have to fill in the blanks of that Order with the dates provided and email the Order back to the Court.
The designated court coordinator will also provide you with dates for filing and serving your materials on the person you are seeking to have restrained. Ensure that you have completed your application form and affidavit or statements in response; have them filed and served by the dates provided. If you are late, there is a good chance the court will adjourn your matter. The opposing party will need to know these dates as well, so when serving your application and affidavit, ensure you also send a copy of the order so they are aware of their own deadlines.
On the date for the hearing in court, the parties or their counsel will appear by telephone or video conference. If you are representing yourself, the Court will likely require you to sign the undertaking and agreement of non-lawyer’s and provide a copy to the court house. You can find links to information on this undertaking here: https://albertacourts.ca/qb/court-operations-schedules/pandemic-operations/COVID19-Announcements/undertaking-and-agreement-for-non-lawyers
If you are suffering from domestic violence or threats of domestic violence and you need assistance in obtaining a restraining order, contact the family lawyers at Crossroads Law for a free consultation. We also provide legal coaching for people who choose to represent themselves.
