Restraining or Protection Orders

 


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

 

This topic addresses protection orders. There are several different types of Orders that you can apply for to protect yourself from a family member who has or may cause you harm in the future. If that person disobeys the protection order against them, they may be criminally or civilly charged. What type of protection order you should apply for depends on your particular situation. This topic will identify and discuss each of the six protection orders you may seek against a family member: Emergency Protections Orders, Queen’s Bench Protection Orders, Restraining Orders, Exclusive Possession Orders and Peace Bonds. A ‘family member’ that you may seek an Order against includes any of the following persons:

  • A person you are or were married to
  • A person you had an intimate relationship with and lived with
  • A person who you have a child with but were never married to
  • Any other person you are related to by blood (includes any adopted person, in-law’s and adult children)

 

Emergency Protection Orders (‘EPO’)

 

An application for Emergency Protection Order can be made without giving the abusive family member any advance notice. Under the Protection Against Family Violence Act, intimidation or harm by a family member against another family member is considered family violence. Family violence also includes sexual abuse by one family member against another family member or damaging any of your property. The court approves EPO’s if the abusing family member threatens or harms you and/or the children and you feel that you need urgent protection to prevent any future threats of harm against you or your children’s well being. You need to prove to the court that violence and threats have occurred against you or your children and that it will continue.

 

In emergency situations, the police or a family member can get an EPO on your behalf and serve a copy to your abusing family member. This is so you can stay in your home and prevent the family member from entering the property or contacting you.  The Order will place conditions and boundaries on your abusive family member to protect your safety.  These conditions may require them to stay away from your home and may also prevent them from coming near your place of employment or the children’s school or daycare. They will not be able to come within a certain distance of you and/or your children, no matter where you may be in the province of Alberta.

 

If you obtained an EPO from the Court, the Court of Queen’s Bench must review it within 9 working days. The date and time of the review is stated on the EPO.  At the review, the Order can be cancelled or it can be replaced with a Queen’s Bench Protection Order (see below).  It is important for that you go to Court for the review, whether or not you want the EPO to be continued.

 

Queen’s Bench Protection Order (‘QBPO’)

 

A Queen’s Bench Protection Order is in many ways different from an EPO. Unlike an EPO, you may apply for a QBPO even if your situation is not an emergency or urgent. For this reason, if the court does not grant you an EPO, you may still be eligible to apply directly for a QBPO at the Court of the Queens Bench. However, unlike an EPO, you must serve your family member with a copy of a QBPO. You cannot get a QBPO without the other family member’s knowledge.

 

A QBPO will also protect you from any threat of violence from your abusing family member. The Queen’s Bench Protection Order can be made to suit your needs and your family situation. The Court can make any condition it feels is necessary to ensure you and/or children’s safety. For example, the other party can be ordered:

  • To stay away from your home, your place of business, or the children’s school
  • To not contact you or your family members in any way
  • To give you exclusive possession of your home for a specified time period, whether you own or rent your home
  • To pay you for costs you incurred as a direct result of the family violence.
  • To give you temporary possession of certain property, such as a vehicle, keys or bankcard.
  • To protect your property
  • To call the police to remove that person if necessary
  • To receive counseling
  • To have weapons seized and removed.

 

The Queen’s Bench Judge decides how long the QBPO will last.  It may be up to one year but can be extended for a longer time period, given that you apply to the Court before the QBPO expires.  This Protection Order will also not affect or determine any rights to title or ownership held by the parties either jointly or separately. This will be decided in a separate property division action in which you should consult a lawyer for.

 

Restraining Order

 

You can apply for a Restraining Order against an abusing family member or someone else who is not your family member. The person must have, by their actions or words, made you fear for your safety.  An application for a Restraining Order can be made without providing the abusive family member with any notice (This is known as ‘ex parte’).  However, if the person is not a family member, you must provide them with notice. You may file an application for free at the Court of the Queen’s Bench, whether it is or isn’t a crisis or emergency situation. The Restraining Order may often be granted the same day and may last for up to 3 months or permanently, depending on how serious the situation is. If the Restraining Order was made ex parte, a date for a review of the Restraining Order will be set in which the abusing family member will be given an opportunity to attend Court and give their reasons on why the Restraining Order should not be continued. Should the abuser violate the Restraining Order, they can be arrested.

 

Exclusive Possession Orders

 

The Alberta Matrimonial Property Act and the Family Law Act also contain provisions for preventing the spouse/partner from using or taking jointly owned property (e.g. a vehicle or a house). This is called an Exclusive Possession Order.  The application is made in the Court of Queen’s Bench. Violence does not need to be a factor when applying for an Exclusive Possession Order.

 

An Exclusive Possession Order is a temporary Order, intended to set out who can use the home or the property until the two of you reach an agreement on how your property will be divided. It does not give you ownership rights in the home or the property.  Here, the Court determines who temporarily uses the property based on convenience or the children’s best interests until you file for a separate property division action.

 

Exclusive Possession Orders under the Matrimonial Property Act are only available to people who have been married to each other.  However, the Family Law Act also allows for unmarried couples to apply for an Exclusive Possession Order if the application is combined with an application for child or spousal support. If you want an Exclusive Possession Order, you should consult a lawyer.

 

Peace Bond

 

The Criminal Code of Canada also has provisions to protect you if you fear for your safety.  This applies to any two people who have any kind of interaction that leaves the person afraid that the other will harm them. Peace Bonds are used as a way to resolve criminal charges while protecting the victim’s safety.  For example, if a person has been charged with assault, the Crown may be willing to drop the assault charge in return for the charged person agreeing to a Peace Bond. This will require them to have no contact with the victim and to keep the peace for a certain period of time. They will also be stopped from entering certain locations mentioned in the Order. If the charged person violates these conditions, they can be criminally charged and may be fined, imprisoned or found in contempt of Court.

 

You should make sure that your Court Ordered Peace Bond is registered with the police. You should also leave copy of the order at your children’s school and day-care if the charged person is preventing from coming there. If they attempt to approach you, you can call the police and they can arrest them immediately based on the Peace Order provisions.

 

If you decide to leave as a result of family violence and have nowhere to go, there are emergency shelters in Alberta towns and cities. They provide shelter and protection for both you and your children and help you to access community resources to take legal actions against the abuser. Contact your nearest Social Services and Community Health office for the telephone number of the shelter nearest you. You may also prefer to stay with friends or family.

 

You may call Calgary Legal Guidance Restraining Order Program at 403-716-6484 or Edmonton Protection and Restraining Order Project at 780-423-8920 for more assistance.  If you live outside these areas, contact your local police, RCMP detachment or victim’s services unit for information on other services in your community.  You may also contact Lawyer Referral Service. If you have limited income, The Legal Aid Society of Alberta may provide you with guidance. You may contact Legal Aid at 1-800-845-3425.

 

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.