EMERGENCY PROTECTION ORDERS
Emergency Protection Orders are available when there has been an incident of violence or a threat of violence between family members, including current and former spouses and/or their children. There must be a need for immediate protection. If you or your children have experienced an incident of violence or have been threatened with violence, you should immediately contact the Police. When the Police investigate your call as a domestic disturbance the investigating officer has the discretion to obtain an Emergency Protection Order immediately, depending on the circumstances.
You can also apply for an Emergency Protection Order from the Provincial Court of Alberta. The application in Provincial Court is done without notice to the other party. You may be assisted by an officer of the Court, commonly referred to as Duty Counsel. Duty Counsel will help you to file your application for an Emergency Protection Order and assist in explaining your application to the Judge who will determine whether an Emergency Protection Order should be granted. You will be referred to as the Claimant in your application. The Emergency Protection Order may or may not extend to the children, depending on the circumstances of your case.
The Emergency Protection Order must be reviewed by a Justice of the Court of Queen’s Bench within 9 days of being granted. Prior to the review, you must file an Affidavit in the Court of Queen’s Bench to support the continuation of the Emergency Protection Order. Your Affidavit should provide a detailed description of the incident and the events leading up to the incident. The Respondent may file an Affidavit contesting the continuation of the Emergency Protection Order.
The Justice in the Court of Queen’s Bench will review the evidence and decide whether to continue the Emergency Protection Order or replace the Emergency Protection Order with a Queen’s Bench Protection Order. If an Emergency Protection Order or a Queen’s Bench Protection Order is breached, the Respondent can be arrested and summoned to appear before the Court. If the Court finds that the Respondent did breach the Order, they can be jailed or fined.
The Justice reviewing the Emergency Protection Order also has the option of replacing the Emergency Protection Order with a Mutual No Contact Order, requiring that neither spouse may contact the other, either directly or indirectly. Where children are involved, the Court may vary the Mutual No-Contact Order to allow the spouses to email or text each other only for the purposes of arranging parenting time with the children.
Where a domestic disturbance results in criminal charges, a Peace Bond may be issued by the Court. When a complaint is made to the Police regarding a threat or incident of violence, the accused is arrested and is a giving a notice to appear in Court on a specific date. At Court, the accused is asked if they will agree to a Peace Bond. A The Peace Bond does not create a criminal record. The Peace Bond normally is in place for one year and has conditions placed upon the accused, including a requirement that they have no contact with the person whose complaint led to the criminal charges. There may be other conditions, such as that the accused must attend counseling, or not possess weapons.
At court, the accused is asked if they will agree to a Peace Bond, which is essentially a promise to keep the peace and be of good behavior. If the accused breaches the Peace Bond, the accused may be charged with breach of a Peace Bond, which is a criminal offence.
ORDERS FOR EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME
An application for Exclusive Possession of the matrimonial home can be made in circumstances where the parties are married, but separated and both parties are continuing to reside in the matrimonial home. An application for Exclusive Possession may be made by either party if an action has been commenced for Divorce and the Division of Matrimonial Property under the Matrimonial Property Act of Alberta. An Order for Exclusive Possession of the matrimonial home is intended only as an interim remedy to resolve disputes about who will remain in the home and who will leave. The Order for Exclusive Possession does not change either party’s claim to a share in the equity of the matrimonial home. The applicant does not have to show that there has been violence or the threat of violence. The issues considered by the Court are what is in the best interests of the children and which party would be most inconvenienced by having to move out of the matrimonial home.
RESTRAINING ORDERS IN FAMILY VIOLENCE SITUATIONS
(Available when the parties are unmarried but living in an Adult Interdependent Relationship)
Restraining Orders are obtained in the Court of Queen’s Bench, usually without notice to the other party. A review date is set to give the other party a chance to dispute the Order. There must be violence, threats of violence or other actions that make you afraid for your physical safety. If the Restraining Order is continued at the review date, it is usually in place for 3 months, but it can be longer, or made permanent, if necessary. If the Restraining Order is breached, the respondent is arrested and held until a hearing before a Justice of the Court of Queen’s Bench, usually the next day. If the Court finds that the respondent did breach the Restraining Order, they can be fined or jailed.
Emergency Protection Orders and Restraining Orders are serious court remedies and should not be used simply to gain advantage over the other party. They should not be applied for in cases where there are only disagreements between the parties, or where the other party is only annoying you. In those cases, a more practical remedy, such as limiting contact with the other party, is a more reasonable response than seeking a Court Protection Order.
Murray considers himself a champion of the underdog.He feels a personal connection to people in vulnerable circumstances, and he takes particular satisfaction in helping people meet adversity, overcome their obstacles, and triumph in a system that seems to be stacked against them.He personally experienced both a divorce and motor vehicle accident, so he knows the difficulties, pain and struggle involved in overcoming these personal and legal challenges.That’s why he is such a forceful advocate for his clients’ rights.
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His firm, Bodnaruk Law is located in Calgary, Alberta, Canada
The content contained in this law blog is intended to provide information about the subject matter and is not intended as legal advice. If you would like further information or advice on any of the subjects discussed in this blog post, please contact the author at Bodnaruk Law at 403.288.0009 or firstname.lastname@example.org
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