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The Law Relating to Family Violence

Potential safeguards for victims of family violence, currently available under Alberta Law, fall into 4 categories.  These categories include:

1. Criminal charges (used along with no contact orders and peace bonds);
2. Civil Restraining Orders;
3. Exclusive Home Protection Orders; and
4. Protection Against Family Violence Act orders.

The focus of this article is on the 4^th category of orders.

The Protection Against Family Violence Act (Alberta) came into force on June 1, 1999.  The Act provides for 3 types of orders, namely Emergency Protection Orders, Queen's Bench Protection Orders and Warrants Permitting Entry.  These orders do not replace other safeguards available, they are provided in addition to other safeguards.

Emergency Protection Orders
Emergency Protection Orders (otherwise known as EPOs), by legislation, are essentially police driven applications.  The intention of an EPO is to provide immediate protection to a complainant.

The application for an EPO is a 2-step process.  The first step involves the actual application to a Justice of the Peace or a Provincial Court Judge.  A designated person (eg. an RCMP Officer) may make the application for an EPO to a Justice of the Peace with the consent of the claimant by telecommunication.  Further, a claimant or a designated person may also make the application in person to a Provincial Court Judge.  The application is recorded on tape.

To determine if an EPO should be granted, the Provincial Court Judge or Justice of the Peace is to consider, among other factors, the history of family violence, the immediate danger to persons or to property, and the best interest of the claimant or the children of the claimant.

If an EPO is granted it can restrain an alleged abuser from contacting the claimant, prevent the alleged abuser from communicating with the claimant, give the claimant exclusive possession of the residence, direct the removal of the alleged abuser from the residence, or direct the police to seize and store weapons that have been used, or have been threatened to be used, to commit family violence.

The City of Red Deer currently does not have a local Justice of the Peace to handle EPOs.  Therefore, RCMP in Red Deer and Central Alberta must apply to Justices of the Peace located in Edmonton and Calgary by way of telephone.  It is thought by some individuals that EPOs may be more effective if Red Deer had a local Justice of the Peace.  A local Justice of the Peace may be more aware of local problems and local concerns.   Further, a local Justice of the Peace may lead to increased accessibility.

The second step of an EPO is a review hearing.  Once an EPO is granted, a review hearing is scheduled.  As part of the review process, the recorded application and any notes taken at the initial application are sent to the Court of Queen's Bench.  A Justice in the Court of Queen's Bench has a number of options on review.  The Justice can direct that an oral re-hearing take place, revoke, confirm or vary the terms of the EPO.  Further, a Justice can replace the EPO with a new type of order called a Queen's Bench Protection Order.

Queen's Bench Protection Order
The Court of Queen's Bench may convert an EPO into a Queen's Bench Protection Order or it can grant such an order on notice to the alleged abuser.  A Queen's Bench Protection Order can order all of the same things that can be included in an EPO plus the order can direct an alleged abuser to pay for monetary losses incurred by a claimant as a direct result of family violence.  Examples of such losses include medical or dental expenses, loss of earnings, moving and accommodation expenses, and so on.

Warrant Permitting Entry
This type of order permits the person named in the warrant to enter a residence or any other structure or building used in connection with the place and to search for, assist or examine a family member.  The warrant may also permit the person entering the premises to remove a family member who may have been the subject of family violence, with their consent.

Although these tools may not stop family violence from occurring, they may assist in preventing family violence from re-occurring and are certainly a step in the right direction.

By Stacey M. Johnson
October 15, 2003