Emergency Protection Order Review Hearing Process and Test

Subsequent to our previous blog post on Emergency Protection Orders (“EPO”), CLICK HERE, the Alberta Court of Appeal came out with a decision explaining the test to obtain an EPO and the requirements for a judge when reviewing the EPO (see DCM v TM, 2021 ABCA 127).  Below we lay out the test and commentary provided by the ABCA regarding EPOs.

EPOs are granted pursuant to section 2(1) of the Protection Against Family Violence Act.  That piece of legislation lays a test that must be met in order for an EPO to be granted (para 11):

(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

(b) 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

The judge must consider the following factors when ordering an EPO (para 12):

(a) 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.

EPOs are often granted “ex parte” which is Latin for without the presence to the other party.  To ensure the responding party can speak to the allegations in the EPO a Queen’s Bench Court review process must occur within nine business days of the EPO being granted.  At the EPO review, the court can do any of the following (para 13):

(a) revoke the order,

(b) direct that an oral hearing be held,

(c) confirm the order, in which case the order becomes an order of the Court of Queen’s Bench, or

(d) revoke the order and grant an order under section 4 [of the Protection Against Family Violence Act being a Queen’s Bench protection order].

When the court reviews the EPO, the Judge must specifically address each of the necessary elements of the test, namely (1) family violence has occurred; (2) the violent will continue or resume, and (3) the threat of family violence is imminent.

An EPO will only be granted if “family violence” has occurred, which is defined in s. 1(e) Protection Against Family Violence Act as including (para 14):

(i) any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member,

(ii) any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member,

(iii) forced confinement,

(iv) sexual abuse, and

(v) stalking,

An EPO can only be confirmed if each of the elements of the EPO test are met.  A judge cannot simply continue the EPO out of an abundance of caution. 

EPOs are a stressful process, be it the party applying for protection or the party whom the EPO is sought against.  DCM v TM helps to clarify the test needed to confirm an EPO and provides a framework to determine if appealing an EPO is appropriate.  SVR Family Lawyers has vast experience representing individuals who are seeking the protection of an EPO and individuals who dispute an EPO granted against them.  Contact us directly – we are here to help.