What Happens If You Are Served With An Emergency Protection Order?

Police Car, Emergency Protection Order

Emergency Protection Order

Receiving service for an Emergency Protection Order (EPO) can be a daunting and confusing experience. Whether you’re facing allegations of family violence or trying to understand the legal process, it’s crucial to know your rights and the steps involved. An EPO is a legal tool that aims to provide immediate protection to individuals facing threats of family violence. Additionally, it comes with serious implications for both parties involved. In this post, we will guide you through what an EPO is, what happens after you receive service of one, and the process of navigating the legal system, to help you prepare for the next steps.

What is an Emergency Protection Order?

An Emergency Protection Order (“EPO”) is a court order that is governed by the Protection Against Family Violence Act and granted by a Justice of the Peace or a Justice of the Alberta Court of Justice. The Protection Against Family Violence Act sets out the following reasons in which the courts can grant an EPO:

“2(1) (a)    that family violence has occurred,

(a.1)   that the claimant has reason to believe that the respondent will continue or resume carrying out family violence, and

(b)    that, by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant.”

A family member in this instance may be:

  • either be a spouse or an adult interdependent partner (formerly known as a common law partner),
  • the parent of a shared child,
  • a family member by blood or adoption,
  • or someone who has custody over the individual applying for the order.

When deciding to grant an EPO the Justice of the Peace or Justice of the Alberta Court of Justice must consider several factors. This can include the history of violence between the parties and other family members, whether the violence is repetitive or escalating, the exposure of the violence on any children that may be present and their best interests, and the need to provide safety from violence on a longer-term basis.

An EPO will cover:

  1. What the other party cannot to do;
  2. Court dates; and
  3. Filing deadlines.

What Is The Initial EPO Review Date?

After the courts grant an Emergency Protection Order, there is a chance for the other person to respond to the EPO. The courts serve the person against whom the EPO is granted, specifying the date they can appear to address the EPO Order, typically within 9 days

Both parties should order the transcripts from the initial EPO hearing wherein the courts grant the EPO. This can be done by a clerk at Court of King’s Bench at the courthouse where the courts will hear your matter.

At the initial review date, if both parties cannot agree on how to proceed with the EPO—whether to set it aside, keep it in place, or enter into a Mutual No-Contact Order—the court will schedule a hearing.

The court will then set the hearing date within a few weeks to a few months. This timeline can change according to the availability of the court.  The hearing date will involve in-person oral evidence, which is also known as viva voce evidence.

What Happens Between The Initial Review Hearing And The Main EPO Hearing?

While waiting for the EPO hearing date, the terms which are in the original EPO Order will more than likely remain ‘in full force and effect’. This is subject to any amendments at the review which the Justice accepts. Examples include varying the locations in which the other person cannot attend and including provisions for the visitation of the Children.

Sometimes settlement efforts can be made in advance of the hearing to see if the parties can agree on appropriate terms for any confirming order. This allows the parties to avoid the costs and stress of the hearing.

What Is The Process Of The Emergency Protection Order Hearing?

The morning of the EPO hearing the parties will attend to advise the court on how they wish to proceed. At present, the courts complete this process remotely via Webex. Should one or both parties seek to continue to the hearing, the court will assign a room at the courthouse, as well as a date and time.

The EPO hearing is a formal process in which both parties will examine the evidence that has been provided to the courts. This evidence may be:

  1. The Oral testimony given on the date the EPO was applied for;
  2. Affidavit evidence, which is a sworn statement that you have provided to the Courts and served to the other party;
  3. Audio or Video evidence;.

During the hearing each party will have the chance to examine the evidence provided to the court by way of cross-examination. This means each party will take turns questioning the other about the evidence. The court will first question the person who applies for the EPO. Any answers given during this questioning will be oral evidence.

What Factors Do The Courts Consider When Confirming Or Vacating An Emergency Protection Order?

The courts will look at several factors to determine how they should proceed. In addition they will also consider evidence provided by written affidavits and oral evidence. As set out in R.P. v. R.V., 2012 ABQB 353, they must consider:

  1. Is There A Legitimate Risk of Harm?

Does the other party pose a legitimate risk of harm to the applicant? or a person under the applicant’s care? or the applicant’s property? Was the risk of harm posed as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour?

  1. Does The Situation Warrant An EPO?

    The Applicant has the burden of proof to show that the situation warrants an EPO. That means they must establish that they had a legitimate reason to obtain the EPO and that it should continue. The behaviour of the other party in between the time of the EPO order and the EPO hearing may also come into consideration.

  1. To What Extent Does The EPO Impact The Other Party’s Rights?

An EPO by its nature restrains the other person’s liberty. The Applicant must convince the courts that this restraint is not inappropriate. Further, granting the EPO cannot be as a matter of routine or an abundance of caution.

  1. Does The EPO Appropriately Balance With The Other Party’s Rights?

An EPO must balance the need to protect vulnerable applicants while not unreasonably interfering with the liberty of the other party. The risk being of infringing this right but be objectively reasonable. (Westlund v Beever, 2024 ABKB 191)

  1. Do The Parties Have Enough Time To Consider All The Issues?

When an order may restrain a person’s liberty the court must give enough time to consider the issues and supporting evidence.

What Is The Outcome Of The EPO Hearing?

At the conclusion of the oral hearing, the Justice may;

  1. Revoke the emergency protection order,
  2. Vary the emergency protection order,
  3. Confirm the emergency protection order or,
  4. Revoke the order and grant a King’s Bench Protection Order.

These will have different effects depending on what terms the Justice may wish to include in the Order. Which is why it may be helpful to speak to a legal professional to understand what the outcome will mean for both parties.

How Can Kahane Law Office Help?

The Family Law team at Kahane Law Office understands how stressful and overwhelming obtaining an Emergency Protection Order and attending an EPO hearing can be.  Our lawyers are knowledgeable and ready to step in and walk you through the process from start to finish. Schedule an appointment with one of our family law lawyers today. You can contact our office at (403)225-8810 for the Calgary Office or (780) 571-8463 for our Edmonton Office.