Emergency protection orders in COVID-19 era

Serena Eshaghurshan

In my previous articles in The Lawyer’s Daily, I discussed social issues that constitute as barriers to equitable access to justice outcomes. One such issue is family violence, which occurs in all socioeconomic classes. As a new articling student, I had the opportunity to participate and present Emergency Protection Orders (EPOs) in both provincial court and Court of Queen’s Bench. Such experience afforded me a more tangible understanding of the underpinnings of family violence and the utility of contemporary legislative safeguards. In this article, I will discuss how EPOs work and how they operate in light of the COVID-19 era.

What are EPOs?

An EPO is an order that is issued in cases of family violence. It is governed by the Protection Against Family Violence Act (PAFVA). While many people may confuse EPOs with restraining orders, they are markedly different, both in drafting and in practice. Unlike restraining orders, an EPO can only be issued against legislatively defined “family members.” This definition encompasses spouses, adult interdependent partners, common law partners, individuals who have children together, individuals who are related by blood or marriage, etc.

Furthermore, EPOs can only be issued in urgent family violence situations. The three-part test for issuance of an EPO is denoted in s. 2(1) of PAFVA, which is (1) family violence has occurred; (2) the claimant has reason to believe the respondent will continue to engage in violence; and (3) the situation is serious enough to warrant immediate protection.

An EPO application starts in provincial court, where it can be granted by a judge or justice of the peace (JP). These applications are heard 24/7 in Alberta. The first step for a claimant or a peace officer, on behalf of the claimant, is to fill out the application and outline specific safety concerns. After this, the claimant or a peace officer appears either in front of a judge or JP, who will review the application and get live evidence after swearing in the claimant or a peace officer.

After hearing evidence, the judge or the JP will decide as to whether the grounds for issuance have been satisfied. It is important to note at this stage, the application is ex-parte, meaning there is no notice of this application to the respondent. If granted, the EPO is scheduled for a review in Court of Queen’s Bench within nine business days. The respondent is served a copy of the order by a peace officer.

The appearance in Court of Queen’s Bench is not ex-parte. Both the claimant and the respondent are expected to appear. Both parties can be provided duty counsel services through legal aid, at no cost and without any financial eligibility criteria.

There are several possible outcomes at the review hearing: the EPO may be adjourned (especially if the respondent requests time to retain counsel or to review disclosure); the EPO may be extended (for a maximum period of one year); the EPO may be revoked; the EPO may be changed to a mutual no-contact order; or if disputed, the EPO may be set down for a viva voce hearing, in which case the claimant and respondent will be afforded an ability to cross-examine each other, with a fact-finder making a final decision as to the EPO’s viability.

COVID-19 and family violence

There is an interplay between family violence and the COVID-19 pandemic. Research has demonstrated that the pandemic has exacerbated family violence by creating and perpetuating inequity in accessing social supports and various components of the legal system. As such, the need for EPOs has dramatically increased.

However, the pandemic also helped to shed light on what modification may be useful in addressing antiquated legislative practice and procedure. Since the pandemic, EPO applications are done via phone, which allows one to call from wherever they feel safe, and it aids in addressing various access to justice barriers, such as the inability to physically access the legal system and related supports, which yields more equitable justice outcomes.

In conclusion, EPOs are a highly viable tool in addressing family violence. As an articling student, I can’t help but notice the difference between learning about EPOs in law school and then actually carrying out such application in practice. The degree of violence and cruelty inflicted upon survivors of family violence never fails to shock me, and in some circumstances, it is truly a life-or-death situation. However, I am very grateful for the opportunity to engage in such meaningful work.

As the law is not a static entity, going forward we can continue to identify mechanisms that aid in eradicating family violence, both internal and external to the legal system.

Serena Eshaghurshan is 2021 J.D. candidate at the University of Calgary. Prior to law school, she received a bachelor of arts in psychology at the University of Calgary.

Photo credit / Oleg Chumakov ISTOCKPHOTO.COM

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