Emergency Protection Orders
Emergency Protection Orders (“EPO”) have recently come under scrutiny, while the legislative scheme initially set out for EPO’s to be used as a shield to protect individuals from family violence, it has instead been used as a sword for individuals to gain a tactical advantage in the litigation. It is important for an individual to know if an EPO is the right mechanism for them or if a restraining order or a no contact order is better suited in their situation. The process for EPO’s is explained below:
In obtaining an EPO, either a Provincial Court judge or a justice of the peace hearing an ex parte EPO application must be satisfied that the requirements of s. 2(1) of the Protection Against Family Violence Act have been met, which are as follows:
(a) that family violence has occurred;
(1.a) that the claimant has reason to believe that the respondent will continue or resume carrying out family violence; and
(c) 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.
Section 2(2) of the Protection Against Family Violence Act outlines the factors that must be considered when granting an EPO:
2(2) In determining whether an order should be granted, the judge of the Provincial Court or justice of the peace must consider, but is not limited to considering, the following:
(b) the history of family violence by the respondent toward the claimant and other family members;
(b.1) whether there is or has been controlling behaviour by the respondent towards the claimant or other family members;
(b.2) whether the family violence is repetitive or escalating;
(c) the existence of any immediate danger to persons or property;
(c.1) the vulnerability of elderly claimants;
(c.2) the effect of exposure to family violence on any child of the claimant or on any child who is in the care and custody of the claimant;
(d) the best interests of the claimant and any child of the claimant or any child who is in the care and custody of the claimant;
(e) the claimant’s need for a safe environment to arrange for longer-term protection from family violence.
It is important to note that the finding of family violence is a prerequisite to both the granting of an EPO under s.3 of the Protection Against Family Violence Act, family violence includes:
- Any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member;
- Any act or threanted act that intimates a family member by creating a reasonable fear of property damage or injury to a family member;
- Forced confinement;
- Sexual abuse; and
Once an EPO has been granted, the Court of King’s Bench must review the EPO pursuant to s. 3 of the Protection Against Family Violence Act. The test on a review of an EPO has three parts:
- Whether family violence has occurred;
- Whether there is reason to believe that the respondent will continue or resume carrying out family violence; and
- By reason of seriousness or urgency, an order should be granted.
It is at this point that the reviewing justice may (a) revoke the order, (b) direct that an oral hearing be held, (c) confirm the order, in which case the order become an order of the Court of King’s Bench, or (d) revoke the order and grant an order under section 4.