Emergency Protection Orders in Alberta: From Application to Review

What Is an Emergency Protection Order?

An Emergency Protection Order is a court order designed to provide immediate protection to individuals experiencing family violence. Unlike standard restraining orders, EPOs are specifically tailored for urgent situations involving family members. When granted, an EPO can order the person causing harm to:

• Stay away from you and other family members

• Have no contact with you or specified family members

• Move out of the family home

These orders are meant for emergencies where immediate protection is necessary. They provide a legal shield during crisis situations while allowing time for more permanent arrangements to be considered. EPOs are not long-term solutions or substitutes for parenting orders, but rather immediate interventions for safety concerns.

Qualifying for Emergency Protection

To obtain an EPO, three essential conditions must be met:

1. A family member has committed violence against another family member

2. There is reason to believe the family violence will continue or resume

3. The situation is urgent and serious enough that immediate protection is necessary

For situations that aren't urgent or as serious, other options such as a King's Bench Protection Order or a standard restraining order may be more appropriate.

Who Can Receive Protection Under an EPO?

EPOs specifically protect individuals from family violence. Under Alberta law, family members who qualify for EPO protection include:

• Spouses (current or former)

• Children

• Blood relatives

• Relatives by marriage

• The other parent of your child

• Children in your care and custody

• Former intimate partners

• Someone who has care and custody of another person

Importantly, EPOs do not apply to dating partners unless they live together or have children together. They also don't apply to roommates who aren't intimate partners.

What Constitutes Family Violence?

Under the Protection Against Family Violence Act, family violence encompasses a range of harmful behaviors:

• Actions that cause injury to a person or damage to property

• Intimidation or harm that creates a reasonable fear of property damage or personal injury

• Forced confinement

• Sexual abuse

• Stalking

How to Obtain an EPO

Emergency Protection Orders can be obtained 24 hours a day, 7 days a week in Calgary through:

• Legal Aid's Emergency Protection Order Program (during business hours)

• The Calgary Hearing Office (during all other times)

• Local police or RCMP

• Your lawyer

When applying for an EPO, you'll need to provide details about the violence that has occurred and why you believe you're in immediate danger. In many cases, the initial application is heard without the respondent (the person the order is sought against) being present, allowing for quick action in dangerous situations.

The Initial EPO Process

When an EPO is granted, it becomes legally enforceable once the respondent receives a copy. This document outlines the specific rules they must follow. Typically, a police officer or professional process server will formally serve the EPO to the respondent.

The EPO will include a scheduled date for a review hearing before a Justice of the Court of King's Bench. This hearing must take place within 9 days of the initial order being granted.

The Mandatory Review Hearing

The review hearing is a critical step in the EPO process, as it determines whether the temporary emergency protection will continue. Unlike the initial EPO application, which may have been granted without the respondent's presence, the review hearing gives the respondent their first formal opportunity to present their side of the story.

This hearing serves as an important safeguard, ensuring that protective measures are maintained only when justified while allowing those wrongfully accused to challenge the order.

Respondent's Rights and Preparation

The respondent has several important rights during this process. First, they are entitled to obtain a free transcript of the evidence provided when the EPO was initially granted. This allows them to understand precisely what allegations have been made against them.

The respondent also has the right to respond to these allegations by submitting an Affidavit in Response. This sworn document allows them to present their version of events and any evidence contradicting the claims made against them. It's important to note that respondents will not be permitted to introduce any evidence or make statements in court that aren't included in their affidavit, making thorough preparation of this document essential.

To properly file their response, the respondent must complete the Affidavit in Response, file the document at the courthouse, and serve the documents to the applicant by sending them to the applicant's lawyer's address or directly to the applicant's address. A crucial restriction is that the respondent cannot personally serve the documents to the applicant, as this could violate the EPO's no-contact provisions.

Judicial Decision Framework

At the review hearing, the Justice will evaluate the EPO based on specific criteria established in the Protection Against Family Violence Act. These factors provide a structured framework for determining whether the protection order should continue:

1. The history of family violence by the respondent toward the claimant and other family members

2. The presence of controlling behavior by the respondent toward the claimant and other family members

3. Whether the family violence is repetitive or escalating

4. Whether there is any immediate danger to persons or property

5. Whether there are vulnerable elderly claimants

6. Whether any child of the claimant or in their care is exposed to family violence

7. The best interests of the claimant and any child in their care and custody

8. The need for a safe environment for the claimant to arrange long-term protection from family violence

The Justice weighs these factors to determine whether all three elements required under the Protection Against Family Violence Act are satisfied: (1) family violence has occurred, (2) the violence will likely continue or resume, and (3) the threat of family violence is imminent.

Possible Review Hearing Outcomes

After considering the evidence and arguments from both sides, the Justice may make one of four decisions:

Confirming the Order: If all three elements of the test are met, the Justice may confirm the EPO, allowing it to remain in effect for up to one year.

Revoking the Order: If the evidence doesn't support the continuation of the EPO, the Justice may revoke it entirely.

Ordering a Viva Voce Hearing: If the Justice believes more information is needed before making a final decision, they may order an oral hearing (viva voce hearing) where witnesses can testify and be cross-examined.

Replacing with a King's Bench Protection Order: The Justice may revoke the EPO and replace it with a King's Bench Protection Order, which typically provides longer-term protection with more specific provisions.

The Viva Voce Hearing Process

If the Justice orders an oral hearing, both parties will have the opportunity to present evidence more comprehensively. This may include their own testimony, witness testimony, and cross-examination. This more formal proceeding helps the court gather additional information when affidavit evidence alone isn't sufficient to make a determination.

After a viva voce hearing, a Mutual No Contact Order is sometimes offered as a dispute resolution option. This is particularly common in situations where both parties allege violence or harassment by the other. A Mutual No Contact Order is a consent order that both sides agree to, prohibiting either party from contacting the other directly or indirectly.

If parties agree to a Mutual No Contact Order, the EPO is typically revoked, and the mutual order takes its place. These orders include enforcement clauses that allow police involvement if either party violates the terms.

How an EPO Ends

An Emergency Protection Order can conclude in several ways:

1. Expiration: The EPO reaches its one-year time limit

2. Judicial Termination: A Justice orders the EPO ended at the review hearing or subsequent proceedings

3. Claimant Application: The claimant applies to the court via an affidavit to have the EPO revoked or modified

4. Replacement: The EPO is replaced by another order, such as a King's Bench Protection Order

It's important to note that respondents cannot apply to have an EPO revoked; this action must be initiated either by the claimant or by the Court.

Enforcement and Violations

If the respondent doesn't follow the EPO, the police can arrest and charge them for breaching the order. This is a serious offence that can result in:

• Fines

• Jail time

• A criminal record

Multiple breaches of an EPO typically result in an automatic jail term. The enforcement provisions give EPOs significant protective power, as violations have immediate and serious consequences.

EPOs and Parenting Orders

When an EPO is in place, it can significantly impact existing parenting arrangements. While an EPO is primarily concerned with safety rather than custody, it may temporarily override parenting time provisions in existing orders if contact between the parents or between a parent and child would violate the EPO's terms.

When this occurs, the parties typically need to return to court to address the impact on parenting arrangements. This might involve:

1. Modifying the existing parenting order to accommodate safety concerns

2. Establishing supervised visitation arrangements

3. Implementing safe exchange protocols

4. Creating new communication channels regarding the children that don't violate the EPO

The court's primary concern is balancing the safety of vulnerable family members with maintaining appropriate parent-child relationships when possible. Each situation is evaluated based on its unique circumstances, with the child's best interests remaining paramount.

When to Consider an EPO

An Emergency Protection Order should be considered when:

• You fear for your immediate safety or the safety of your children

• Family violence has occurred and is likely to continue

• The situation is urgent and requires immediate intervention

• Other protective measures would take too long to implement

EPOs are powerful tools for protection, but they are also serious legal interventions. They should be sought when genuinely needed for safety, not as tactical measures in family disputes without actual violence or danger.

Navigating the Process with Legal Support

The EPO process involves complex legal considerations and procedural requirements that can be challenging to navigate without professional guidance. Whether you're seeking protection from family violence or responding to allegations, having experienced legal representation can significantly impact the outcome.

The Calgary Legal Team has extensive experience with both sides of EPO proceedings. Our family law attorneys can help you prepare applications or responses, develop appropriate evidence, navigate procedural requirements, and advocate effectively for your position. We understand the sensitive nature of these matters and provide compassionate, strategic representation focused on achieving the best possible outcome for your specific situation.

If you need assistance with an EPO application, an upcoming review hearing, or have questions about how an EPO might affect other family court matters, contact The Calgary Legal Team for a consultation to discuss your options.