Watch a recording of the session and browse FAQs.
Hundreds of Albertans attended Legal Aid Alberta’s online information session on November 25 to learn about how an emergency protection order can keep someone safe from an abuser.
We received dozens of questions from participants. This is a summary of the live Q&A, plus five additional FAQs.
Q: Can you explain what qualifies as reasonable fear and what would be involved in proving the validity of that?
A: When a claimant is giving evidence before a judge at an application, the claimant has to show, for example, has there been a history of family violence? What is the fear based on? Is this something that’s happening for the first time, or has it been happening over the course of months or decades?
The fear is coming from an experience only that person knows. It might be coming from a situation where the claimant has gone through significant family violence. The judge will take a look and say, “this fear is reasonable, it makes sense that this person is fearful for their safety, and that this behavior will continue, or there’s a reason to believe it will continue.”
Q: Do you need to qualify for Legal Aid to get an EPO?
A: No. You do not need to qualify for Legal Aid, from the application level right through to the review hearing. If it goes to an oral hearing, you may need legal counsel.
Q: Can you apply for an EPO after-hours?
A: Yes. You can apply through police officers 24/7 to have a hearing with the justice of the peace.
Q: What’s the difference between a restraining order and an EPO?
A: A restraining order is different altogether. If there’s no family relationship, it does not qualify for an EPO. Let’s say you need protection from a neighbor who may be harassing or stalking you, causing you to fear for your safety. That would not qualify as a family relationship required by an EPO. A civil restraining order would apply. Depending on the severity of the factors, you can ask for the police to serve those, but only when there are scary dynamics there – serious allegations of violence.
Q: What’s it like to apply for an EPO?
A: Many questions will be asked, and information collected. Is this a personal family member? Is there serious violence, as defined in the Protection Against Family Violence Act? And is the situation urgent? If it looks like an EPO is the best way to go, an application will be submitted to the courts or a justice of the peace for a hearing. The claimant will have to testify, and if the requirements are met, an order would be granted.
Q: How does the EPO get served?
A: The law requires the EPO be served as quickly as possible because the respondent is required to attend a review hearing nine days later. EPOs are served by police officers.
Q: What if the respondent can’t be found?
A: If police can’t find the respondent – they may not have a residence or they may be in hiding – we have to adjourn the review hearing. The last thing we want to see is what we call the merry-go-round where the claimant gets stuck in an adjournment process where the police can’t find the respondent and we adjourn over and over. It’s overwhelming for the claimants.
So, how do we deal with situations where the respondent hasn’t been served? The court is open to suggestions, which may result in allowing us to serve by Facebook or text message or email. There are options so we can avoid multiple adjournments. It takes up an unreasonable amount of court time.
Q: What if the respondent doesn’t live in Alberta?
A: The EPO is provincial legislation. It’s only enforceable in Alberta. There may situations where they are working out of province and coming back and forth. There may be circumstances where it’s appropriate, if they are working out of province and coming back and forth.
For service outside of Alberta, we may be looking at substitutional service like Facebook, text message, or email. If you say the respondent touches base with their mother or father once or twice a week, you can make the argument that we’ll serve the mother or father. There are all kinds of different ways that we can try and do service if we have to. But the best way is personal service on the respondent directly.
Q: How long does it take to get an order?
A: It terms of getting the order, it depends how you’re applying. If you’re coming to the courthouse in Edmonton or Calgary, Legal Aid has duty counsel lawyers there and we can usually have your application in front of a judge in a few hours.
If you’re doing an application with police you will spend some time with the police officer, giving them the facts. They’ll make the application to a justice of the peace by telephone and it will be granted immediately.
Q: When does the order go into effect?
A: It’s immediate, as soon as the judge or justice of the peace grants the order.
The order will be sent to the police for service on the respondent, and that might take longer than the nine-day review period. Even so, without exception, there is no delay to the EPO being reviewed within nine working days of being granted.
Q: Is there a way to obtain an EPO where a parent threatens to abscond with a child/children?
A: No, that would not qualify. We do see those factors in applications but there must be the family violence component that’s outlined in the EPO requirements. In that case, as family law lawyers, you would need to look at getting a parenting order in place. Parenting orders can be applied for at the same time you’re dealing with an EPO. Unfortunately, you can’t do both at the same time. An EPO does not deal with parenting issues, although parenting terms do often get included in the EPO. Parenting should be dealt with separately.
Q: How long can an EPO be in place?
A: An EPO may be granted for up to one year only, starting from either the day the EPO was granted or the day the EPO is being reviewed by the Court of Queen’s Bench in a Review Hearing or an Oral Hearing.
Q: Does Legal Aid provide representation at the review hearing?
A: There are three hearings for an EPO: the EPO application hearing, the EPO review hearing, and the EPO oral hearing. In Calgary and Edmonton, Legal Aid Alberta Duty Counsel are available, at no cost, at the application hearing and the review hearing. We can assist Albertans at the review hearing stage in Lethbridge, Red Deer, and Wetaskiwin.
Those that have an EPO oral hearing scheduled can represent themselves or retain a private lawyer if they do not qualify for legal aid.
Q: As a probation officer, is there anything I could do on my end on behalf of victims who are requesting an EPO besides directing them to these resources? Or do they have to apply themselves? For example, if they are afraid to call police or attend the courthouse but indicate to me that they are in danger.
A: Anyone, with the permission of the Judge or Justice of the Peace, may apply for an EPO on behalf of a person, who has been the subject of family violence and has given that person their consent to do so.
Q: How recent does the violence or threat of violence need to be to obtain an EPO? If there is evidence of violence in the past, and then circumstances indicate that violence will likely occur again soon, can an EPO still be used?
A: It depends on a case-by-case basis. The Judge or Justice of the Peace must be satisfied of four things to grant an EPO. The parties are family members as defined by the Protection Against Family Violence Act (PAFVA).
The evidence provided by the Claimant DOES NOT have to be both serious and urgent, it only has to satisfy the requirement of one of these terms. Please contact our EPOP offices in Calgary or Edmonton, and we can walk through the evidence you have to assist with determining if an EPO is appropriate.
Q: What are the basic steps to remove or vary an EPO? What if the applicant changes their mind?
A: Once an EPO has been confirmed, the Claimant may apply to the court to have it revoked. The Claimant will need to prepare, file, and swear under oath, an affidavit setting out the reasons why they are seeking to have the EPO revoked.