Test Considered by the Court When Confirming Emergency Protection Orders

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byRohit Sanggar

Introduction
 
Emergency protection orders are a creature of statute designed to protect family members from violence. These orders provide a safeguard to the claimant and restrict the respondent’s liberties by imposing certain conditions, such as no contact with the claimant, no access to their residence, workplace, school, or religious institutions. It can also prohibit a respondent from communicating directly or indirectly with the claimant or their children. Should the respondent disobey this court order it may result in criminal charges under section 127 of the Criminal Code of Canada.
 
If a claimant or their children are at risk of harm due to family violence, they can request an emergency protection order through an ex-parte application. This type of application is made without notifying the other party, which means that the respondent is not informed of the application at the time it is made.
 
After an emergency protection order is granted, the Court of Kings Bench will review the order, and the reviewing Justice has the power to revoke the order, call for an oral hearing, confirm the order, or issue a restraining order instead. If the court determines that the claimant still requires protection, they may choose to confirm the order, meaning that it will remain in effect.
 
If the respondent decides to contest the order, an oral hearing may be held. This type of hearing involves a direct examination, which permits both parties to testify and cross-examine each other. At the end of the hearing, both parties are given the opportunity to present arguments as to why the order should be confirmed or vacated.

The Dangers of Emergency Protection Orders
 
Courts are diligent when confirming Emergency Protection orders. They recognize that such orders require a delicate balance between protecting the claimant and upholding the civil liberties of the respondent. This was emphasized in Schaerer v. Shaerer [2021] ABCA 104 where Justice Antonio, Veldhuis, and Slatter stated in paragraphs 19 and 21:
 
[19]           Granting restraining orders always requires a careful balancing of the need to protect vulnerable domestic partners, while at the same time not unreasonably interfering with the liberty of the other spouse. The risk being ameliorated must be objectively reasonable; care must be taken that the hyper-vigilance of one spouse is not the basis for unreasonably restraining the liberty of the other spouse. The burden of proof is on the applicant to show that a restraining order is the appropriate response to the underlying problem.
 
[21]           Secondly, an order restraining the liberty of a party is an extraordinary remedy. We disagree with the wife’s submissions that there was no prejudice to the husband by simply extending the order. A breach of such an order can lead to contempt of court, and can result in the respondent being arrested. In this case, the extraordinary nature of the remedy and the serious consequences that may befall the husband are not displaced by finding that the order is made “without-prejudice” and “without any finding of misconduct”.
 
These orders can have an immense impact on an individual’s liberties and may have many collateral consequences. The Courts have been cognizant of the dangers of such an order and its misuse. The courts are mindful that emergency protection orders are, at times, used for collateral purposes. This has been emphasized in Siweic v. Hlewka, [2005]  ABQB, Justice Slatter stated in paragraphs 17 and 18:
 
[17]            Protection orders constitute a restraint on the liberty of the respondent, and they should be regarded as an extraordinary remedy. They are intended to protect claimants from family violence, an objective that was considered so pressing that it was felt to justify granting restraints on the liberty of third parties on an ex parte basis. As this case well illustrates, in some instances the respondent can be driven from his or her home with virtually no notice, and with no opportunity to respond to the allegations made.
 
[18]            Unfortunately, over time it appears that the extraordinary nature of the remedy provided for in the Act has been forgotten. In some instances protection orders are handed out as if they were routine business. Of particular concern is that protection orders are now being used for collateral purposes. Protection orders were designed to protect claimants from family violence. They were never intended as a backdoor, ex parte way of obtaining custody of children, or exclusive possession of matrimonial premises, or possession of matrimonial chattels. That may well be an incidental effect of many protection orders, but that should not be their primary purpose.
 
 
Therefore, to confirm an EPO, the courts will assess the case’s facts and apply a three-stage test to validate the order. The applicant is required to establish on a balance of probabilities that 1) there has been family violence, 2) there is a reason to believe that the Respondent will continue or resume carrying out family violence, and 3) an order should be granted due to the seriousness or urgency of the matter. A reviewing Justice must carefully evaluate each element of the test and make the necessary findings of fact. The Justice should also be precise and concise in their conclusion to confirm the EPO.

Has family violence occurred?
To confirm the first stage of the test. The applicant must establish that family violence has occurred.  Family violence is defined in section 1(3) of the Protection Act of Family violence Act which includes the following:
intentional or reckless act or omission that causes injury or property damage and that intimidates or harms family member 
 
 any act or threatened act that intimidates a family member by creating a reasonable fear of property damage,
 
Forced confinement
 
Sexual abuse and
 
Stalking
 
The standard of proof requires that the applicant must satisfy on a balance of probabilities namely whether it is more likely than not the event occurred. Most importantly the evidence required to satisfy the balance of probabilities test must be sufficiently clear, convincing, and cogent.
 
Is There Reason to Believe that the Respondent will Continue to Resume Carrying out family violence?
 
The second stage of the test requires the court to determine if the claimant has reason to believe that the respondent will continue to resume carrying out family violence as set out in 2.1(a.1) of the PAFVA. This stage of the analysis allows the court to analyze the facts of the case and considers factors set out in section 2(2) of the PAFVA. The courts emphasized this in NH v. HR, [2022] ABKB, where Justice Marion stated in paragraph 33 and 34:
[33]           On a review, section 2(1)(a.1) does not strictly apply, and the Court of Appeal has stated that the test is whether there is “reason to believe that the respondent will continue or resume carrying out family violence”. I take this to mean that, on review, once the Respondent has had the opportunity to respond, it is no longer about what a claimant subjectively or objectively believes, but whether the court, after hearing from both parties, has reason to believe, based on all of the evidence, that the respondent will continue or resume carrying out family violence.
[34]           Under this analysis, I find some of the factors from section 2(2) of the PAFVA to be pertinent, in particular: (a) the history of family violence by the respondent to the claimant and other family members; (b.1) whether there is or has been controlling behavior by the respondent towards the claimant or other family members; and (b.2) whether the family violence is repetitive or escalating.
 
Therefore, the second stage of the test requires the court to be fully convinced after evaluating all the evidence and hearing from both parties that the respondent is likely to continue carrying out family violence.
 
Should an order be granted by reason of seriousness or urgency?
The third stage of the test requires the court to consider the immediate protection of the claimant in emergent situations. The court stressed that this order is needed to provide the immediate protection of the claimant and other family members by reason of seriousness or urgency.  This is stipulated in Siwiec v. Hlewka, [2005] ABQB 684 where Justice Slatter stated at para 14:
[14]            This scheme of the Act is that in emergent situations a Provincial Court Judge or Justice of the Peace can grant an order ex parte. There are two pre-conditions to the jurisdiction under this section: there must be family violence, and the order must be needed for the “immediate protection” of the claimant”
 
When determining the seriousness and immediate danger of the claimant. The Courts will consider factors in Section 2.2 of PAFVA and factor in the impact of family violence on the children.  This has been stipulated in NH v. HR  [2022] ABKB where Justin Marion stated in paragraphs 40 and 41:
[40]           In my view, the seriousness of the family violence at issue will usually be the primary consideration where the EPO has been in place for months. Some of the factors outlined in section 2(2) of the PAFVA are also relevant to seriousness, including the vulnerability of elderly claimants, the best interests of the claimant and children, and the impact of family violence on children:  sections 2(2)(c.1), (c.2), (d) and (e). Other legislated considerations relating to the best interests of the children may also provide some useful guidance on seriousness:  see, for example, the Divorce Act, RSC 1985, c 3, section 16. There is no exhaustive list under the PAFVA.
[41]           The importance of considering the impact of family violence on children, and the best interests of the children, has recently been re-confirmed by the Supreme Court of Canada. The Court noted that research indicates that children who are exposed to family violence are at risk of emotional and behavioral problems throughout their lives: Barendregt at para 143.
If the claimant can demonstrate that there is an immediate need for protection from family violence. Then this satisfies the third stage of the test.
 
Conclusion
The issue of family violence is of grave concern, and the Court has implemented measures to assist those who are vulnerable in such situations. An emergency protection order is one such measure that aims to protect vulnerable parties from family violence. This order acts as a safety net by offering protection to the claimant while imposing strict conditions on the respondent.  However, it is important to note that an Emergency Order is intended solely for the immediate protection of the claimant and should not be utilized for any other collateral purpose. At Soby Boyden Lenz we are able to assist you if you have been a victim of family violence or have been served with an EPO.
 
 
 
 
 
 
 
 
 
 
   

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