Everything you need to know about restraining orders in Alberta

Calgary Herald

2 days ago

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According to Daniel Wilson, senior associate lawyer at Calgary-based Mincher Koeman, the main difference between applying for a restraining order and for an EPO to deal with family-related violence is whether the situation is urgent enough to necessitate an order without giving the defendant advance notice.
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A no-contact order, according to Niv, is a condition that can be encompassed in either a restraining or an EPO. 'Either a judge will decide or the parties, most likely, will agree on (mutual no-contact),' he said. 'Technically that's a restraining order on both people, but it's limited to a no-contact condition.'
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A restraining order, according to Wilson, can 'apply to an infinite number of situations'.
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'There has to be some kind of offending conduct, like an invasion of privacy, stalking, harassment, unwelcome communication,' he said.
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The court would have to determine if the person seeking the restraining order has a 'sincere, subjective basis for believing the offending conduct is going to continue … and that the belief is objectively reasonable,' he added.
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The evidence would have to be specific, not speculative. 'It's not enough to say that if I don't get a restraining order, this person might engage in this unwelcome behaviour,' he said. 'The claimant would have to show that there's a likelihood that it will continue based on faces, not based on belief or dislike for someone.'
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To qualify for an EPO, the judge has to be satisfied that it is an emergency with three determinations, according to Wilson.
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'The first is that family violence has occurred,' he said, whether that be physical violence, damage to property or threats of violence to a family member.
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'Then the claimant or alleged victim has to believe that the respondent will continue or resume carrying out the family violence. Third, by reason of seriousness or urgency, the order should be granted for the immediate protection of the claimant and other family members.
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'So EPOs are supposed to be reserved for situations of urgency.'
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How is a restraining order or an EPO obtained?
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In the case of a restraining order, the person filing the application would have to give the defendant — whom the application is being filed against — 20 days notice, to allow time to make a defence.
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'The default principle our justice system normally works on is one of fairness and the other side is to be given an opportunity to respond to the case that is made against them before the court makes an order that will affect their rights,' Wilson said.
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However, the court can allow for wiggle room to shorten the period of notice, whereby the defendant is instead served with 10 days notice and on the 10th day, the claimant can ask the court to shorten the notice period.
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The court can also grant an interim or a 'without prejudice restraining order' until the hearing to approve or reject a full restraining order or EPO. 'It's just to create or preserve status quo without deciding against anyone because there hasn't been a fair hearing as yet,' he said.
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For a client concerned about violence during the interim period, Wilson said he would first discuss the possibility of applying without serving notice. 'No harm in doing that, if you lose, you just have to make the application again,' Wilson said.
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However, the respondent should know that any criminal acts conducted during that period could be used as evidence against them at the hearing for the order, especially actions in the nature of conduct that led to the restraining order being applied for.
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However, an emergency protection order is a much simpler, expedited matter. As it caters to situations of emergency, a claimant seeking an order can go to a courthouse and fill out an application for the order. An available staff lawyer who will make the application to the judge for them and the claimant would have to give a brief oral evidence on the stand. The judge would then make the order or refuse to make the order, he said, the whole process of which would only take up to a half hour.
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If court isn't sitting, then a claimant can make the application via a phone call to a justice of peace.
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Hiring a lawyer isn't necessary to obtain a protection order. But Niv said he's often called by clients who find the process too complex, lengthy and/or are too victimized to be able to write the affidavit and serve the person whom the order is taken out against.
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'Unless you hire third parties to do some of these tasks for you, you're going to have some interaction with the person want to last deal with,' he said.
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It depends on the nature of the order.
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Conditions set out in a protection order can vary widely, depending on the parties involved. For some, it may mean that one party is not allowed to set foot within a certain distance of the other or have limited contact through specific means or no contact at all. It may mean that both parties are prohibited from contacting each other or talking about each other.
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'It can impact the defendant severely,' according to Wilson, by preventing them from returning home, visiting their neighbourhood, church, their place of employment, family members, visiting their children or discussing children with another parent.
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'It can prevent them from coordinating a visit where a third party brings kids to the visit just because the order might be worded in an unfortunate way,' he added.
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The wording of an order can sometimes have unintended adverse consequences for both parties. For example, if the parties are spouses going through a separation, an order may force them to only communicate through their lawyers, instead of texting — 'which is very expensive.'
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It could also preclude the claimant from visiting places where the respondent might be. 'It makes things practically very difficult and expensive and slow,' he said.
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What happens if an order is defied?
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It depends on how the order was customized. 'Because civil restraining orders and emergency protective orders are more party-driven, it's up to the private individuals to decide what they're asking for and they can negotiate that with the other individual,' Wilson said.
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An order, for example, can include police enforcement clauses. 'If a breach is reported, the police or any peace officer can arrest the party in breach' and bring them to a judge to be held in a contempt hearing, Wilson said.
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Because it is a civil order, breaching it is not a criminal offense, but it can result in a fine or imprisonment, Wilson said.
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In Niv's experience, most of the time, the person served with the order stays away.
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'The fact that one has been filed is usually enough to tell people who are doing the problem to stop,' he said.
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However, both Niv and Wilson emphasize that it does not guarantee a person's safety against an alleged perpetrator.
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'An EPO or a restraining order will at best create civil or criminal consequences for a respondent who breaches it,' Wilson said. 'But it will not protect a person from an assault or an attempt on the claimant's life. It's a piece of paper, so the only thing that will do that is incarceration of the respondent.'
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However, by filing and obtaining an order, the hope is that it would keep the person whom the order is taken out against, from breaching conditions to avoid criminal charges or civil sanctions.
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'They won't want to be charged with an offence. They won't want to be charged with contempt. They won't want their behaviour to reflect poorly on them if there is a parenting dispute,' he said.
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When it does happen, it's usually because someone attempted communication with a former spouse via a family member to encourage them to drop the restraining order, he said. 'Or not respecting a condition of staying away 100 m or 50 m,' he added.
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A 'blatant, wilful' disobedience of the order would result in 'immediate consequences' as the claimant would presumably call the police. 'And if they show they won't comply with court orders, especially if they have criminal charges against them, then they're going to have their judicial interim release revoked and they might be waiting in remand until their charges are dealt with,' he said.
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