[Explainer 6]: What You Should Know About EPO Applications
A society’s overarching interest in ensuring the protection of its inhabitants is usually reflected in its body of laws. Canada, being a constitutional democracy, has laws that are specifically drafted to protect its inhabitants. One of such laws is the Criminal Code which codifies acts and omissions that are properly defined as crimes and prescribes the punishments for the crimes when an accused person is either convicted or pleads guilty.
It is common for the police to tell a person, who had complained about the actions of a family member or a neighbour, to, “go to the courthouse and obtain a protection order.” In instances such as this, the police have determined that there is not enough evidence to warrant laying a criminal charge.
Not all acts or omissions constitute a crime. Certain behaviours, acts or omissions by some individuals are capable of threatening a society’s peace but such behaviours, acts or omissions may not meet the threshold set by the Criminal Code in order for those individuals to be criminally charged.
In situations such as described in the preceding paragraph, recourse is usually had to the civil law as a mechanism for settling disputes that may arise or to force one person to cease an act or behaviour that threatens the peace of another person. This is known as a “Protection Order” in Canada.
Classes of Protection Order
In Alberta, “Protection Order” is a term that encompasses an ‘Emergency Protection Order’ (also known as an EPO), a ‘Restraining Order’ and a ‘Queen’s Bench Protection Order’.
Each of these three types of Protection Order serves the same purpose of protecting a person whose security of the body or property is threatened by another person in a way that does not rise to the level of a crime. However, they differ in terms of the situations/circumstances in which the court may grant the protection order being applied for.
The commonest of the protection orders is the EPO. This piece seeks to clarify the law on EPO in light of the treatment of EPOs in ways that caused Justice Slatter (as he then was) to warn in Siwiec v. Hlewka, 2005 ABQB 684 at para. 18 (“Siwiec”) that, “in some instances protection orders are handed out as if they were routine business.”
Emergency Protection Order
An EPO offers protection to a person whose safety or property is threatened by another person. In Alberta, EPO is governed by the Protection Against Family Violence Act (“PAFV Act”). This legislation prescribes the requirements that must be met before an EPO is issued by a judge of the Provincial Court or by a Justice of the Peace, or confirmed by a Justice of the Court of Queen’s Bench. Notably, an EPO constitutes “a restraint on the liberty of the respondent, and they should be regarded as an extraordinary remedy”: Siwiec at para. 17.
The extraordinary nature of the EPO is underscored by the fact that: The respondent’s constitutionally guaranteed right to freely move around is suddenly curtailed by a court order that prescribes the physical distance that the respondent must maintain from the claimant anywhere in the province throughout the duration of the EPO;
The respondent is not given notice of the EPO application. This is why EPO applications are known as “ex parte” applications, meaning that they are “without notice” to the respondent;
The respondent’s right of ingress to a family property is immediately suspended;
Notwithstanding that a parenting order had previously been granted by the Queen’s Bench, an EPO that is subsequently issued by the Provincial Court effectively bars access to the children of the parties in a situation where the children are included in the EPO, and
A breach of the EPO constitutes a crime for which the respondent, in the first instance, could be liable for a term of imprisonment not exceeding 90 days or for a fine not exceeding $5,000 or both.
How to Obtain an EPO
Procedurally, an EPO application must be made at the Provincial Court either before a judge or a Justice of the Peace. EPO applications are typically made before a Justice of the Peace in a situation when the need for an EPO arises outside the courts’ official hours, on statutory holidays or on weekends. All EPO applications are made ex parte, meaning without notice to the respondent.
By law, the EPO, if granted, must be forwarded to the Court of Queen’s Bench for review or confirmation which review or confirmation should hold within 9 working days of granting it. This is to give the respondent an opportunity to challenge the grounds upon which his or her liberty is being constrained.
Pre-Conditions for Granting or Confirming an EPO
There must the threat of or an actual visitation of family violence by a family member or a person who is close enough to the claimant. The family violence could have resulted from an intentional or reckless act.
The Order must be needed for the immediate or urgent protection against escalating or repetitive family violence.
Many EPOs are obtained at the Provincial Court on grounds that may be considered flimsy or too stretched as to constitute ‘family violence’, as that term is defined under the law. It is not uncommon for a claimant’s statements such as, “John Doe has threatened to kill me” or “he follows me around” to be considered sufficient to warrant the granting of an EPO by the Provincial Court.
Quite often, too, most EPOs involve spousal disputes that pertain to the parenting of minor children of the spousal relationship or disagreements over family properties. The courts frown at the misuse of EPO in this manner. It is noteworthy that Justice Slatter commented in Siwiec, at para. 18, that, “protection orders were designed to protect claimants from family violence. They were never intended as a backdoor, ex parte way of obtaining custody of children, or exclusive possession of matrimonial premises, or possession of matrimonial chattels.”
In a situation where the threat of family violence is not emergent or immediate, the court should decline to entertain the application for an EPO. The claimant should be steered towards applying for a Queen’s Bench Protection since urgency or immediacy of the family violence is not a requirement.
Although the existence of family violence is a pre-requisite for granting an EPO, the court may decline to grant the order even where family violence has been proved: GAP v. GP, 2010 ABQB 296 at para. 25. As with most court applications, the courts’ consideration of an EPO application involves the exercise of judicial discretion, hence the legislature has employed the use of the word “may” rather than “shall” in the PAFV Act. Applicants for EPO must bear this in mind because a judge could decide against issuing an EPO for a variety of reasons, one of which could be that the EPO is not a relief that is designed for a family law dispute.
This is not legal advice. If you are looking for legal advice or an informed second opinion on your matter, please contact me through any of the contact details below:
Barrister & Solicitor