By Daniella Marchand, Legal Coach, Alberta
There is not one way to define family violence, and family violence is not always obvious to observers (even those trained to look for it), as it can sometimes take the form of coercive control.
The law in Alberta recognizes many different types of family violence. Even if someone hasn’t been charged criminally for offences relating to domestic or family violence, you still may be able to get a protection order, especially if you are concerned for your safety and well-being, as well as that of your family members, including your children.
There are several different protection orders that exist for individuals who are at risk or are experiencing family violence in Alberta. If you are at risk of family or domestic violence, there are several options you can pursue to protect yourself and your children including the following:
- Emergency Protection Orders
- King’s Bench Protection Orders
- Restraining Orders
What is an Emergency Protection Order?
An Emergency Protection Order (EPO) is a court order that helps protects individuals who feel immediately threatened by family violence. EPOs are granted under the Protection Against Family Violence Act, which has a large definition of family violence and includes recognition that family violence can be:
- Threats or actions that cause injury to a family member or causes property damage
- Threats or actions that intimidate a family member and create a reasonable fear of property damage or harm to you or a family member
- Stalking, which includes repeated and harassing contact (this can include showing up at your place of work, or your house if you live in separate homes)
- Sexual abuse
- Any instances of forced confinement (meaning you’ve been locked in a room or restricted from leaving a space due to the person’s actions)
EPOs are granted on an ‘ex-parte’ basis, meaning that they are granted without notice to the other party. The purpose of this is that if you have immediate concerns that you or children may be at risk for family violence, you can apply for an EPO without the other party finding out that you are seeking one. However, notice will be given to the other side if you are granted an order.
It is also important to know that although EPOs are granted without notice, there will eventually be a review hearing where the court will hear from both sides.
You are only eligible for an EPO if:
- You are family members as defined by the applicable legislation, which includes:
Individuals who lived together in an intimate relationship
Individuals who have a child together
Individuals who are or were married to the other party
Individuals who are related by blood, marriage, or adoption
- If family violence (as defined by the legislation) has occurred
- If it is an urgent or ‘emergency’ situation
- That you (the claimant) have reason to believe that the family violence will resume or continue
Situations of violence that involve individuals who are dating, but do not live together, or roommates who do live together but are not intimate, would not be eligible for an EPO. However, there are other protection orders that apply to those situations.
An EPO can also give you exclusive possession of a family home if you reside in the home with the individual inflicting violence. If you are worried about having to ask your partner to leave the home, you can ask for a police enforcement clause, which means the police will go to the house and inform the person who the EPO is against that they have to leave. If they would like to collect some of their belongings, the police officer will supervise them while they do so.
The EPO also grants the power to the police to seize any weapons (including guns) that the other party owns and will go to the property to remove these items. If you do not want to stay in the house, you can ask for a police officer to accompany you so you can pick up your belongings.
An EPO can last for up to one year. Once an EPO is granted, the respondent will need to stay away from you and any residences or locations you had included in the EPO (such as your work or children’s schools). If you see the respondent in these areas while the EPO is in effect, you can call the police.
At a review hearing, a justice will either decide whether the order should continue (“confirm the order”); whether further information is needed (“attend a hearing”); cancel the EPO but grant a different type of protection order (either a King’s Bench Protection Order, restraining order, or mutual no contact order); or cancel the order. If the court confirms the order, it will also determine how long the order should be in place for.
The review hearing will go ahead even if you do not attend. It is very important to attend the review hearing. If you do not attend the review hearing, you risk having the EPO terminated by the court.
What is a King’s Bench Protection Order?
If you are experiencing family violence but the situation is not urgent or an emergency, you may want to consider a King’s Bench Protection Order. A court will typically not grant an EPO unless the situation is urgent, but still recognizes there are situations where a protection order may be needed. A King’s Bench Protection Order can be applied for through the Court of King’s Bench.
A King’s Bench Order is not made ex-parte which means you are required to provide notice to the other side by serving on them an application.
A King’s Bench Protection Order has similar conditions to an EPO, in that a court can direct that the other party stay away from your home, workplace, or the children’s schools. It can give you exclusive possession of the family home for a specified period of time, as well as temporary possession over other property, like a vehicle. It can include an order that they are not to contact you or your family members in anyway, such as by phone, text message or email. One way a King’s Bench Protection Order differs from an EPO is that the court can order that the person who caused the violence to pay you for costs you incurred as a result of the violence.
A King’s Bench Protection Order can stay in place for up to one year, however the court will determine how long the order should be for.
Emergency Protection Orders and King’s Bench Protection Orders can grant you exclusive possession of the family home, which prevents the respondent from visiting the family home, as well as contacting you. This means that both EPOs and KBPOs can impact parenting schedules that may already be in place. Remember, abuse is experienced in many ways, and can impact children even when they witness abuse.
If you have questions about how these types of protection orders may impact your children or parenting time, you can speak to a family lawyer or family legal coach to learn more.
What does it mean to get exclusive possession of the home?
Both EPOs and King’s Bench Protection Orders can grant someone experiencing family violence exclusive possession of the family home. The Court can order this even if you are not on the title of the home or do not pay the mortgage. This means you will be able to live in the family home by yourself or with your children, even if you do not own the home, or are not on the lease (if the home is rented).
The protection order can also create a buffer around the family home, a specific distance away from the home that the respondent cannot approach, so that you are able to enjoy the use of the home without worrying that the respondent will show up unexpectedly outside of the home. Restraining Orders (discussed below) cannot give you exclusive possession of a family home, even if the restraining order is granted against your spouse or significant other.
An EPO or KBPO does not resolve parenting issues, custody materials, or access to children, and should not be used to get around these issues, even when you may be granted exclusive possession of the family home. However, support exists for you to safely communicate with the other party, and you do not need to put yourself at risk to take steps to address these other issues.
Exclusive possession orders are meant to be temporary, until you and your significant other can determine what to do with the property when dividing your property during a separation. An exclusive possession order does not mean you are given complete ownership over the property, and this will still need to be divided in any future property division.
What is a Restraining Order?
Restraining Orders are granted by a justice at the Court of King’s Bench and can be made on an ex-parte basis (without notice) or with notice to the other party. If the court grants a restraining order without notice to the other party, it will set a review of the restraining order. At the review hearing, both parties will be able to attend and tell the court their side.
You can only make an application on an ex-parte or without notice basis if it is an emergency. If it is not an emergency or is non-urgent, you are required to give notice to the other party before you apply. You must give the other party at least 10 days’ notice before the scheduled court date.
You must be afraid for your safety in order to apply for a restraining order. However, the person’s behaviour does not need to be considered criminal behaviour, instead you need to show the court you have a reasonable and legitimate fear for your safety or for the safety of your children.
You can apply for a restraining order if someone has made you afraid through their actions, including if they have caused you personal injury, caused property damage or tried to intimidate you through stalking or harassment. Harassment could include sending excessive amounts of text messages or messages through social media after you have already asked them to stop. This could also include behaviour that has threatened your reputation or privacy.
Restraining orders are not limited to only family members though, which is the one of the biggest differences between restraining orders and other protection orders. For a restraining order, the person causing you harm could include a roommate, co-worker, neighbour, or someone you are dating (who doesn’t yet meet the family member criteria from the other two orders).
Restraining Orders are typically granted for one year but can be granted on a longer or even permanent basis if the court finds that is necessary in the circumstances.
If you get an Emergency Protection Order, a King’s Bench Protection Order or a Restraining Order, it is important that you keep a copy of it on your person, as well as provide a copy to the police. This way if the respondent violates the conditions of the order, you will be able to show your copy to the police, or they will already be aware of the conditions of the order.
The police also cannot enforce protection orders unless the respondent has received a copy of the order, so if you have to serve a copy of the order, it is important you do this as soon as possible after it has been granted to you. You should not attempt to serve the order on the other party yourself, you can request for a Peace officer to serve the Protection Order for you.
What is a Mutual No Contact Order?
Sometimes at a review hearing, a court will determine that a protection order does not need to be in place, but that the parties should still refrain from contacting each other.
Mutual No Contact Orders are orders from the court that prevent both parties from contacting each other. It is common that no contact orders will direct both parties to not text, email or call the other person. They also may include restrictions about how close each party can get to the residences of the other person, or to their workplaces.
If an EPO is vacated on review, sometimes the justice will replace it with a mutual no contact order. The justice may believe that although an EPO is not needed or the requirements have not been met, there is still a cause for concern, and it is best if the parties have no contact that is not otherwise court ordered between them. As with other court orders, it is possible for the court to include consequences, including police enforcement clauses, to ensure that the person you are concerned about would still face consequences if they breached the no contact order.
Family violence can take many forms and can be an incredibly difficult situation to navigate and to get out of. If you are in a situation where you are at risk of, or are experiencing family violence, create a safety plan and do your best to try and leave the situation. Once you are in a safe place, a family lawyer or legal coach can help you obtain a protection order. The legal coaches at Coach My Case are here to help you understand these options and more. Book your free 20-minute consultation today.