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Send Us a MessageRestraining Orders: Types, Application Process, and Legal Protection
If you’ve ever been threatened, harmed, or harassed by an individual or abusive family member before, you might consider obtaining a restraining order. The process of securing a restraining order or a protection order in Alberta is straightforward and designed to ensure your safety. It prohibits an individual from contacting or approaching you and your children in the event of a crime. This provides essential legal protection against threats, harassment, and potential harm to create a safer environment for you and your loved ones.
To obtain a restraining order, you must have a reasonable and legitimate fear for your safety. This legal measure is typically pursued when there has been a crime committed against you or when there is a credible and imminent threat to your life or well-being.
Examples of such situations include when family members or individuals exhibit criminal behaviour such as physical assault, stalking, threats of violence, or any form of harassment. This can also involve sending excessive amounts of text messages, forced confinement, or sexual abuse.
When you apply for a restraining order, the court will evaluate the urgency and seriousness of your situation. If the court finds that your circumstances warrant immediate protection, they may issue an emergency restraining order without notifying the individual against whom the order is sought. This process ensures that those in urgent need of protection receive it promptly and effectively.
The kind of restraining order you need depends largely on the situation you are in. In emergency situations where there’s an immediate threat to your safety, you can apply for an Emergency Protection Order (EPO) or an Ex Parte Restraining Order to provide swift relief. For serious but non-immediate threats, you can apply for a standard restraining order or a King’s Bench Protection Order.
An Emergency Protection Order (EPO) is a legal order that provides immediate protection to individuals who are experiencing domestic violence or are at risk of harm. It is specifically designed to provide immediate relief in cases of family violence, and you can secure it 24 hours a day, 7 days a week.
For example, if an individual has experienced physical harm by their partner and fears for their life, an EPO would be necessary to provide immediate protection.
In most cases, it is issued by a judge or justice of the peace, often with police involvement. Those who want to apply should go directly to their local police station. During this time, you should be prepared to provide evidence of the violence or threat.
If granted, an EPO can include specific conditions to protect you, such as prohibiting the respondent from contacting or approaching you, granting temporary possession of your residence, requiring the respondent to leave your residence, and other comprehensive family protection measures. Violating these conditions can result in serious legal consequences for the respondent.
The EPO must be served on the respondent once it is granted. However, the police typically handle this to ensure it is done correctly and safely.
An EPO restraining order is typically valid for a short term. A follow-up hearing is usually scheduled within a few days of its issuance to review the EPO and determine if it should be extended or replaced with a longer-term order.
Victim services, legal aid, or a domestic violence support organization can always assist you with the application process and navigating this aspect of the legal system.
An ex parte restraining order is issued without notifying the other party, typically in situations where the matter is serious and urgent. Designed to protect individuals from harassment, stalking, or threats, it is not necessarily limited to family or domestic violence situations like an EPO is. This type of restraining order can be used in a broader range of circumstances, including disputes between neighbors, former friends, or acquaintances.
Ex-parte restraining orders are temporary and meant to provide immediate protection. This order is granted when giving notice to the other party, which could potentially endanger your safety.
To apply, you must visit your provincial courthouse and apply there. Given the urgency of the situation, the court will schedule a hearing, usually on the same day or within a very short timeframe. The court will hear your testimony and issue the ex parte restraining order if they see fit.
This order will include specific conditions that the respondent must follow, such as no contact or staying a certain distance away from you. The restraining order must be served on the respondent to be enforceable. The police or court-appointed individuals usually handle this to ensure it is done safely and correctly.
A follow-up hearing is usually scheduled where both parties can be present, and the judge will decide whether to extend or modify the restraining order based on the evidence presented by both sides.
A standard restraining order is made available to protect individuals from harassment, threats, or violence. It can be used in a broad range of situations, not limited to family or domestic relationships including cases of harassment, stalking, or other abuse.
To apply for a restraining order, you must file the appropriate forms in a provincial court. It requires the applicant to provide detailed information and evidence of the harassment or threats. This evidence can include records of threatening messages, witness statements, or medical reports documenting injuries.
The judge will assess your situation to determine if there is a reasonable fear for your safety. For example, if you are experiencing ongoing harassment or stalking that doesn’t pose an immediate physical danger but threatens your peace of mind, you are eligible to apply.
Unlike an EPO or ex parte restraining order, both parties should be present. During the hearing, both parties will present their cases, and the judge will make a decision based on the evidence and circumstances. Although this process is longer than an emergency application, it provides a longer-term solution for those not in immediate danger.
A King’s Bench Protection Order (KBPO) is for situations that are serious but not immediately life-threatening. They can provide long-term, comprehensive protection for individuals experiencing family violence, harassment, stalking, or other forms of abuse. They are often used in situations where more enduring measures are needed to ensure your safety.
Eligible individuals include those experiencing ongoing threats or harassment from an abusive family member, even if some time has passed since the last incident.
The scope of a King’s Bench Protection Order includes a wide range of conditions to protect the applicant, such as no contact orders, exclusion from certain locations, and other specific prohibitions tailored to the situation. It may address issues related to custody and access to children, financial support, and exclusive possession of the family home.
The application is made at the Court of King’s Bench which is a higher level court than the provincial courts where an EPO or a standard restraining order is filed.
The judge will evaluate the evidence of your case, to determine if there is a reasonable likelihood that family violence will continue. During this time, both parties (the applicant and the respondent) are typically present during the hearing.
After an applicant has been granted a restraining order or a protection order, it is crucial to serve it to the respondent to ensure they are legally notified. This is important to ensure the order can be enforced.
A restraining order in Alberta is typically done by a police officer, bailiffs, or private process servers. However, if they cannot locate the respondent to serve them with court documents, the courts can permit non-traditional means to do so. A request for an order for substituted service from the court can be made. This allows for alternative means to serve the orders such as delivering them to a relative or friend or posting them at a known location frequented by the respondent.
Serving the documents via email or social media is another option if these are reliable communication methods. In some extreme cases, the court may even permit publication in a newspaper or other public notice as a method of serving the documents.
In Alberta, there are several processes in place to review or cancel a restraining order. In most cases, there will be follow-up court dates to review a current restraining order or protection order.
During this hearing, both parties will have the opportunity to present any new information or changes in circumstances that may impact the necessity or conditions of the restraining order.
If there is no court date scheduled, but you believe that a review of the restraining order is necessary, you can contact the court to request a review. The party seeking to vary or terminate the order must file the appropriate forms (Notice of Motion and affidavit) with the court. These forms can be obtained from the court or online through the Alberta Courts website.
Based on the new information provided, the court will then decide whether to schedule a court date for a hearing to reconsider the terms, duration, or necessity of the restraining order.
At the review hearing, both parties present their case. The judge will consider all evidence and may extend, modify, or cancel the order based on the circumstances. Being well-prepared and consulting a legal professional can help ensure a favorable outcome.
If you have any questions about restraining orders or are unsure which one is right for you, our family law lawyers at DLegal are here to help. We understand the challenges involved in these situations and are dedicated to providing you with comprehensive guidance and support. Reach out today to get started.
The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Terms of Use for more details.
The DLegal team is here to support. We will do our best to assist or connect you with those who can help.
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