Emergency Protection Orders: Who they're for, how they work and how to get one to stay safe.
Nearly 200 people from across the province attended a public webinar Nov. 30 to learn about the ways Legal Aid Alberta helps people facing family violence situations.
The webinar, held the final day of Family Violence Prevention Month, focused on LAA’s Emergency Protection Order (EPO) Program.
Webinar host Krista McFadyen, a staff lawyer with the LAA’s Edmonton EPO Program, covered the scale of family violence in Alberta and nationally. She explained what an EPO is, provided simple definitions of legal terms and requirements, and talked about how to apply for an EPO.
About Emergency Protection Orders:
McFadyen also outlined services the LAA EPOP teams provide, tips for making a successful EPO application, and addressed common questions about EPOs.
“Excellent information”
Many of the attendees were from the social services and legal and justice services sectors. And during a robust 20-minute Q & A period following the formal presentation, McFadyen responded to questions covering everything from technical legal rules and procedures to legal tools available to a person being threatened by a non-family member.
“Great information, I was unaware of the EPOP program. I have had calls regarding family EPOs, now I know where to send those telephone call queries,” one attendee said.
Another guest remarked: “This was a piece of excellent information sharing on how to help someone apply for an EPO and the steps to go through.”
Attendees had many questions related to EPOs and family violence. Scroll through for more valuable information!
Q: What if the claimant admits to abuse, in self-defence, such as pushing the respondent to get out of the home? Can they still get an EPO?
A: Self-defence is generally not considered family violence. Violence on both parts does not necessarily disentitle the Applicant to an EPO. The other facts will assist.
Q: How can the party provide video or audio evidence in a hearing?
A: If the party is self-represented, that party can speak to the Clerks about providing the video/audio. It may be possible to describe / transcribe each as part of the sworn pleadings, the Affidavit. The party can also retain counsel for assistance for the hearing.
The party needs permission from the Justice to enter video/audio evidence at the hearing. It should be put in the EVV Order. The party will then need to provide their evidence the day of the hearing, typically on a USB stick as the court will keep it as evidence for several months before returning it (so NOT on a phone unless they want the court to have their phone for several months).
Q: How long ago does a violent incident, emotional or physical, need to have happened for someone to file a charge?
A: Regarding criminal charges: it depends on the type of violence. There are offences where there are limitation periods.
There is no time requirement for violence to occur for a Claimant to apply for an EPO. However, the claimant will need to explain why the situation is an emergency and urgent in nature NOW if the violence happened a long time ago. Otherwise, the court may suggest that a Restraining Order would be more appropriate.
Q: Is there a certain time frame for the lawyer to contact client before a hearing?
A: No. It is up to the individual lawyer in accordance with their professional obligations (ie. Law Society). For EPO reviews, our duty counsel lawyers do their best to contact the claimants the day before the EPO review. However, that may not always be possible. There are times where contact information is no longer available for the duty counsel lawyer as well.
Q: Does an EPO show up on a criminal record or vulnerable sector search (if the complainant and respondent have children)?
A: An EPO will show up on either a criminal record or vulnerable sector search.
Q: How long is an EPO valid for?
A: There is a mandatory review that takes place at Court of King’s Bench about 10 days after the EPO was issued. Once made, an order can be a maximum of one year.
Q: When an EPO review goes to a “Mutual No Contact Order” and then an assault charge goes to a common peace bond, but the conditions contradict each other, which one is to be followed?
A: If the wording of the order permits police to charge the parties criminally with any breaches, then either the order or the Peace Bond will need to be brought back to court to be amended.
A civil order like a Mutual No Contact Order can exist alongside criminal release or sentence conditions. Both are in effect. Where they contradict each other, the more restrictive provisions are to be followed until clarification can be obtained from a court.
Q: Can people in rural areas call the Calgary and Edmonton line for advice?
A: Outside of Edmonton or Calgary it is best to contact your nearest police department or detachment. If you do call the Edmonton or Calgary number, you will be directed to the best source of immediate assistance.
Edmonton area: 1-780-422-9222
Calgary area: 1-403-297-5260
If you live outside of these areas, call the police at any time or visit your nearest courthouse during business hours.
Q: My EPO was granted in Court of King’s Bench, thus my divorce and separation had to go through this court. My ex is now abusing my child. Can I file for a parenting order in Family Court, or do I need to go to Court of King’s Bench?
A: The jurisdiction for EPOs is King’s Bench and the jurisdiction for divorce proceedings is also King’s Bench. The two are not dependent on each other, they are in KB because it is federal legislation under which the order is made. Once a Divorce Action exists, you must apply for parenting orders under that action. You should not start a new action for a parenting order under the Family Law Act.
Q: If a court date is set and then the claimant is not available, how can you set another date?
A: You will have to attend the EPO Review Court and the instructions are available through the following link: Court of King’s Bench. In an application for adjournment be prepared to speak to justifiable reasons for an adjournment and if the other person consents, just present the application as being agreed upon. If time runs out the process for hearings is that there is a “triage” held in the morning on the day of your scheduled appearance where everyone appears remotely or in person and you can ask for an adjournment there.
Q: If my neighbour is threatening and harassing me, how do I file an EPO? Where do I file?
A: There are other forms of orders for non-family members. You can use a civil order such as a no-contact order or a restraining order. That process is independent of the EPOP that info line will provide that info and referrals for making that application.
Q: Will Legal Aid Alberta assist me in applying for a no-contact order or a restraining order?
A: In some cases. If someone has come through the protection order program and if a protection order is deemed not the most appropriate order in that case, we do sometimes work with them on drafting restraining or no-contact orders when time and resources permit. Otherwise, counsel will direct the person to the proper resource or procedure.
Q: Can a child apply for an EPO?
A: Usually a parent, guardian or someone else will make the application for the child.
Q: Do you need to meet Legal Aid Alberta’s income requirements to call and get assistance with EPO’s?
A: No. Every claimant will receive free assistance from the EPO program regardless of their ability to pay. There is no charge for the application, or the review that follows. If after the review there is a hearing, applicants are subject to LAA’s financial eligibility guidelines to determine if they qualify for LAA support. If they do not qualify for LAA support, there are lawyers in private practice who devote a large portion of their practice to such hearings.
Q: How long does someone need to be “confined” to make an EPO applicable?
A: There is no specific period of time. But in order to make the application successful, the claimant should state reasonably believed that they couldn’t leave, that they couldn’t get out of the situation, that there was coercion. It depends on the circumstances. The applicant should state whether this has happened before and be able to outline the context of the situation.
Q: Is the legal test for EPOs different for child claimants? Will a judge consider capacity at all?
A: The legal test is the same for children as it is for adults. If there is a capacity issue for someone making the application, capacity will be considered. The applicant may then have someone act on their behalf to apply for the order.
Q: What if there is no history of family violence, is an application for an EPO more likely to fail?
A: Not necessarily, if the other parts for the test for family violence is made out such as belief in continuation or urgency it could be a successful application.
Q: In my experience the RCMP and victim services have worked together to assist victims in rural communities applying for an EPO. However, attendance of the victim is required at the review. Is this a correct statement?
A: Yes, a third party can make an application on behalf of the claimant. Certain justices differ on whether the claimant should appear at the review. Some we encourage claimant to attend in person for the review 10 days after order is made. Virtual appearances may be possible.
Q: People have said they had to stand in court in front of their abuser and are too scared to talk about what happened and did not get an EPO.
A: The vast majority of EPO applications are made without the respondent being present. For the review, which takes place about 10 days later, there are claimants and respondents who attend, but the court encourages people to attend remotely via Webex or by phone. At the review, the phone is on mute until a specific question is asked. Sometimes the claimant doesn’t speak at all because they have the duty counsel lawyer there to speak for them. If they are appearing by Webex, they can have their cameras turned off. If both parties attend in person there could be some in-person contact.
Q: What percentage of family violence cases are attributable to mental health or addictions issues?
A: I do not know the statistics, but to say anecdotally, we do see some correlation. It is not criteria in the application order, but it is a contributing factor and we do see it.
Q: If a mother and son are living under the same roof and neither has anywhere else to go can an EPO be granted?
A: Yes. When an Emergency Protection Order is granted, there are three terms we see restricting the respondent from living in the same home: One is usually that the house is included as a restricted location; another is that there is a distance usually of 100-200 metres from claimant that the respondent can’t contact her and the third is exclusive occupation of the home. Sometimes the claimants move out her and, in that case, the exclusive occupation term wouldn’t be included in the order but if there is a Protection Order and there is at least the distance, or the home address included in that order the claimant must know that the respondent has to remove themself and the police will remove them – there is that enforceability. And if there is a breach of the order, that is criminal. The police assess whether a breach reaches the threshold of criminality.
Q: If a respondent is on a community supervision order with no contact in place, is there still any reason to get an Emergency Protection Order?
A: We encourage an EPO in addition to any sort of terms of no contact in probation orders or other proceedings because an EPO is enforceable by police and because sometimes other no-contact orders can be removed without the claimant knowing it – for example, if charges that include a no-contact order are dropped. So, we do encourage having an EPO in addition to any other no-contact provisions.
Q: Who is responsible for serving the Emergency Protection Order? It could be dangerous to the claimant.
A: As soon as the court says the protection order is in place that is the moment it is active, so it is critical the claimant doesn’t serve the respondent. That contact would be a breach of the order and there are safety reasons for restricting that. Serving the order is usually done through a peace officer.
Q: Do I have to attend the court review in person?
A: Right now, the review process is also available to be remote and we encourage that. There may be some conflict or some triggering for the two people to be together for the review. While we encourage both the claimants and the respondents to attend the review, we recognize it is sometimes difficult and there is the ability to attend remotely through the telephone or on Webex.
Ask A Lawyer: Offering support for those facing family violence
Call 911 if you or someone you know is in immediate danger.
To apply for an Emergency Protection Order:
Calgary:
403-297-5260
Edmonton:
780-422-9222
Elsewhere in Alberta:
Call local police
Support and information lines:
Legal Aid Alberta services for family violence – Family Violence Matters – Legal Aid Alberta
To apply for other legal issues with Legal Aid Alberta call 1-866-845-3425.
Alberta services directory online:
Alberta Family violence – Find supports | Alberta.ca
Court of King’s Bench – Information on Urgent Matters Chambers: News & Announcements (albertacourts.ca)
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