If a family member believes that you are being violent towards them, they can apply for an Emergency Protection Order. Violence can include damaging property, injuring the other person, intimidating them or threatening them. It can also include stalking forced confinement and sexual abuse.
The other side can apply to the court ex parte for an order. This means they can apply without notice to you, simply put, the first you will know of their application is when you are served with a copy of the order by the police preventing you from having contact with the other side, sometimes your children, their daycare and preventing you from attending your residence. You may now be homeless, prevented from parenting your children and all without being given an opportunity to challenge the case before the court. The order will not set out the grounds of the application- ie the reasons why it was granted. To find this out you must ask for the transcript of the hearing you were not present at which will be provided to you generally a week after the original order is granted.
These are extremely powerful orders which are designed to protect victims of abuse. They should not be used as a short cut to obtain parenting time or occupation of the matrimonial home where abuse does not exist but unfortunately in a small number of cases these orders are abused.
Once served the Order has full effect and if you breach the order you can be arrested and charged with a criminal offence.
Many victims who obtain an EPO once granted, feel they can communicate in limited circumstances with the other side as they now feel protected. If this happens do not respond as you may be breaching your order and you could be arrested and detained.
It is important that you speak to a lawyer as soon as possible if you do not agree with the allegations that have been made as a number of steps will need to be taken which will be time sensitive.
Once the EPO is granted the matter will be returnable within 10 days to the Court of Queen’s Bench. On that date, you will be required to attend and this will be the first time that you will have your opportunity to present your side of the case to the court. This must be in sworn affidavit form. You cannot simply attend and make verbal submissions without an affidavit. A duty lawyer will be available to assist you, or you can appoint private counsellor to attend and represent yourself. The other side will be represented by Duty counsel and may have a police officer escorting them.
Be prepared this will be a busy courtroom. The EPO matters are mixed with a general list and you may be required to wait until 11 am before the EPO matters are called. If you have a private lawyer, this can become very expensive as they are required to sit and wait until the case is called. The courtroom may be very busy when your matter is called and brief facts as alleged will be given to the Justice.
Your lawyer may ask the court to vacate the order but the court rarely does this on the first occasion. If the matter is contested the court is likely to put the matter over to a full hearing (which will be a short trial of approximately one hour). As the court is so busy and under-resourced the hearing will probably not be for 6 months during which time the order will continue. This means that the terms of the original order which were granted without being challenged will continue until the date of trial which can be for 6 months and can have a significant impact on your character, and personal liberty including time with your children.
When the trial occurs, again a duty lawyer will assist the other side in presenting their case.
The other side will be required to give evidence setting out what has occurred and why an EPO is required. You can cross-examine the other side or your lawyer can if you are represented. The other side may be allowed to call witnesses although the hearings are generally limited in length so special permission may be required. You will then be allowed to give evidence and explain your version of events and after you have given your evidence in chief, the duty lawyer will be able to cross-examine you. You may also be able to call witnesses but again time is limited so permission may be required. At the end of the hearing, the court will make a decision and either grant the order or vacate it.
If the allegations were unfounded and the court finds the other side not credible, your only recourse is to ask for costs. Costs can be awarded to the successful party but the court has discretion on this issue. The costs ordered will rarely cover even half the costs you have incurred to fight this order