When violence or threatening behaviour occurs between family members, the victim of family violence can apply for an Emergency Protection Order (also commonly referred to as an EPO) under the Protection Against Family Violence Act R.S.A. 2000 C. P-27.  An EPO is a court order that sets protective measures immediately in place against the person accused of having committed family violence.  These measures typically involve restrictions on the ability of the accused individual to contact the victim, either in person or via electronic communication.  These measures also typically include the removal of the accused person from the family home and often place significant restrictions on the accused individual’s ability to have contact with their children.

As the remedies set out in an EPO are extremely restrictive and serious in nature, and these Orders are typically applied for without notice to the accused person, therefore denying them the right to immediately respond to the allegations, there are specific conditions that must be met before the Court can grant such an Order.  For an Order to be granted, the Judge must be satisfied that

  • family violence has occurred;
  • family violence will continue; and
  • because of “seriousness or urgency” an order without notice to the other party is required.

 

However, “family violence” does not require that there be physical violence for an Emergency Protection Order to be granted.  Rather, the Protection Against Family Violence Act defines “family violence” as: any act or threatened act creating fear of damage to property or a family member(s), forced confinement, sexual abuse, and stalking.

In other words, even a threat to damage family property, without actually taking any action can be considered “family violence”.

Once an EPO has been granted by the Courts, the EPO must be reviewed by a Justice of the Court of Queen’s Bench within nine working days of the Order being granted. When the order is reviewed, it provides the accused person an opportunity to submit evidence to the Court and respond to the allegations of the victim.

However, it is often the case that when the evidence of the accused person contradicts the allegations of the victim, unless there exists definitive evidence demonstrating that the victim’s allegations were untrue (in other words something more than a he-said/she-said scenario) the Court commonly adjourns the matter of the EPO over to a full hearing with oral evidence to be provided by both parties.

While this does give the parties the opportunity to fully test each others’ evidence, what commonly occurs is that due to the high volume of matters before the Court, the full hearing might be set down many months later.  In such a case, the Court will typically continue the EPO until the full hearing is held, notwithstanding that it was granted solely on the untested evidence of only party. This can cause tremendous prejudice to the accused person, as it can impact their parenting rights, force them to find an alternate residence at their own cost, deprive them of their personal belongings that were left in the family residence, and cast a significant stigma over their personal reputation – solely on the untested allegations of one party.

As a result, EPOs are very serious matters, and because of their ability to impact a person’s parenting rights and their right to reside in their residence, the Courts have acknowledged that there have been cases where parties have attempted to use them for the purposes of terminating their partner’s parenting rights, and/or securing exclusive possession of a residence, without having to actually apply for such relief through proper channels.

We, at Mincher Koeman LLP, have significant experience in assisting parties with addressing Emergency Protection Orders, and recognize how serious they are and how quickly they must be dealt with.

If you need legal advice or representation with any family law matter, please contact Mincher Koeman LLP at 403 910 3000 or reception@mincherkoeman.com.

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