Family Violence and Protection Orders in Alberta

An emergency protection order

The Act sets out three ways an application can be made. It can be made by the claimant — the person who claims to have been the subject of family violence by a family member — for themselves.

It can be made on the claimant's behalf, with the claimant's consent, by a person or a member of a category of persons designated in the regulations.

Or it can be made by any person on the claimant's behalf, with leave of the justice.

The regulations name who may apply on a claimant's behalf with their consent. They designate a peace officer or a person authorised by a police service to assist in applying for orders, a director designated under the Child, Youth and Family Enhancement Act, and a person or category of persons authorised by the Minister.

An application may be made in person or by telecommunication, which the regulations define as including the use of a telephone or video conference. The regulations also provide that the Alberta Court of Justice may establish requirements for an application made by telecommunication.

Separately, the Government of Alberta describes where a person can go. The police or RCMP can be approached at any time.

An application can be made in person at an Alberta Court of Justice during regular business hours, and Legal Aid Alberta provides Court of Justice duty counsel for emergency protection orders at the Edmonton and Calgary court locations.

Outside business hours there is a hearing office.

There is also a telephone route, in which a claimant screening form and identification are reviewed before a justice of the peace calls.

At the hearing, the regulations require the justice to take the evidence under oath or affirmation and declaration in accordance with the Alberta Evidence Act, and to ensure a record of each person's evidence is made, either in legible writing or by a sound recording. An oath may be administered by telecommunication.

When an order is granted, three copies are made.

A copy is served on the respondent as soon as reasonably possible, by a peace officer or by any other person the justice directs, and where someone applied on a claimant's behalf, that person must give the order to the claimant.

Where personal service is impractical, a designated person can apply for substitutional service.

Service can be proved by testimony or by affidavit, and a peace officer who serves an order forwards the affidavit of service, with the order attached, to the clerk of the Court of King's Bench at the judicial centre named in the order.

A King's Bench protection order

The Act directs that an application to the Court of King's Bench under it must be made in accordance with the Alberta Rules of Court, and the Rules set out two routes. One is an originating application, filed in Form 7.

The other, where a proceeding has already been commenced, is a family application filed in Form FL-18 — and that rule opens with the words "Unless otherwise specified", and makes the application subject to Part 6, Division 1 of the Rules.

Either route is accompanied by an affidavit in support.

The Rules also provide an alternative to the affidavit. An applicant may instead file a King's Bench protection order questionnaire, Form FL-13, which is printed in the Rules themselves.

It asks for the relationship between the claimant and the respondent, the date and file number of any previous legal proceedings relating to family violence and whether an order was granted, the names and dates of birth of any children in the claimant's custody, and the reasons for requesting a protection order — where the form's own instruction asks for the dates, nature and history of the family violence and whether any weapons were involved.

It offers a list of conditions to request, and it is completed as a solemn declaration, with the printed warning that it is an offence to make a false declaration.

An emergency protection order

An emergency protection order may include any or all of the following.

• Staying away. A provision restraining the respondent from attending at or near, or entering, any specified place attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members.
• No contact. A provision restraining the respondent from communicating with or contacting the claimant and other specified persons.
• The residence. A provision granting the claimant and other family members exclusive occupation of the residence for a specified period, regardless of whether the residence is jointly owned or leased by the parties or solely owned or leased by one of them.
• Removal. A provision directing a peace officer to remove the respondent from the residence immediately or within a specified time.
• Collecting belongings. A provision directing a peace officer to accompany a specified person to the residence within a specified time to supervise the removal of personal belongings, in order to ensure the protection of the claimant.
• Weapons. A provision directing the seizure and storage of weapons, where the weapons have been used or have been threatened to be used to commit family violence.
• Anything else needed. Any other provision the justice or justice of the peace considers necessary to provide for the immediate protection of the claimant.

The no-contact provision carries its own rule of interpretation: it is to be read as prohibiting communication and contact by any means, including through a third party, unless the order expressly provides otherwise. An order may also be subject to any terms and conditions the justice or justice of the peace considers appropriate.

A King's Bench protection order

A King's Bench protection order may include any or all of the following.

• Staying away. A provision restraining the respondent from attending at or near, or entering, any specified place attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members.
• No contact. A provision restraining the respondent from contacting the claimant or associating in any way with the claimant, and from subjecting the claimant to family violence.
• The residence. A provision granting the claimant and other family members exclusive occupation of the residence for a specified period, again regardless of who owns or leases it.
• Money. A provision requiring the respondent to reimburse the claimant for monetary losses suffered by the claimant, and by any child of the claimant or any child in the claimant's care and custody, as a direct result of the family violence — including loss of earnings or support, medical and dental expenses, out-of-pocket losses for injuries sustained, moving and accommodation expenses, legal expenses and the costs of an application under the Act.
• Possessions. A provision granting either party temporary possession of specified personal property, including a vehicle, cheque-book, bank cards, children's clothing, medical insurance cards, identification documents or keys.
• Property. A provision restraining either party from taking, converting, damaging or otherwise dealing with property the other party may have an interest in.
• Unwanted communication. A provision restraining the respondent from making any communication likely to cause annoyance or alarm to the claimant, including personal, written or telephone contact or contact by any other communication device, directly or through another person, with the claimant and other family members or their employers, employees, co-workers or other specified persons.
• Removal and belongings. A provision directing a peace officer to remove the respondent from the residence within a specified time, or to accompany a specified person there to supervise the removal of personal belongings.
• A bond. A provision requiring the respondent to post a bond the court considers appropriate for securing compliance.
• Counselling. A provision requiring the respondent to receive counselling, and a provision authorising counselling for a child without the respondent's consent.
• Weapons. A provision directing the seizure and storage of weapons, again where the weapons have been used or have been threatened to be used to commit family violence.
• Anything else appropriate. Any other provision the court considers appropriate.

The no-contact provision carries the same rule of interpretation: it is to be read as prohibiting contact by any means, including through a third party, unless the order expressly provides otherwise.

A provision of a protection order is not effective in relation to a person unless that person has actual notice of the provision. The regulations set the test for an emergency protection order: a person has actual notice if they are personally served with a copy, or if there are other circumstances that, in the court's opinion, provide them with actual notice. The Rules of Court set a parallel test for an order granted after a review and for a King's Bench protection order: service, attendance in person or by conference telephone call when the order was granted, or other circumstances that in the court's opinion would have provided actual notice.

How long an order lasts is set by the judge. A protection order is granted for such specified duration as the judge considers appropriate in the circumstances, and it may not exceed one year unless it is extended. The Court of King's Bench may, on application, extend the term of a protection order for further periods, none of them exceeding one year.

A protection order does not in any manner affect the title to, or an ownership interest in, any real or personal property held jointly by the parties or held solely by one of them. Exclusive occupation decides who may be in the residence, not who owns it.

There is a protection for renters. Where a residence is leased by the respondent and a claimant who is not a party to the lease is granted exclusive occupation of it, no landlord may evict that claimant solely on the basis that they are not a party to the lease. On the claimant's request, the landlord must tell them the status of the lease and serve them with notice of any claim against the respondent arising from it, and the claimant may choose to assume the respondent's responsibilities under the lease.