Justice revokes EPO based on passage of time and physical separation
In TCJ v DK, 2023 ABKB 612 a girlfriend, TCJ, obtained an EPO against her boyfriend, DK, before a Justice of the Peace on February 8, 2023 in conjunction with filing a complaint with the police which resulted in charges being laid against the boyfriend.
In applying for the EPO the girlfriend provided the following evidence:
Over the last 6 months of their relationship, the boyfriend’s verbal and physical abuse of the girlfriend have escalated into threats and violence;
During one incident, the boyfriend took a knife, held it to the girlfriend’s throat and threatened to kill her;
During another incident, the boyfriend stabbed the bed with his knife;
In the third incident, the boyfriend told the girlfriend he was going to chop her up into pieces with an axe; and
The boyfriend pushed the girlfriend’s son (from another relationship) and shook him
The chambers judge who initially reviewed the EPO scheduled the matter for an oral hearing in October 2023.
At the oral hearing, the girlfriend testified to that since the EPO was granted in February 2023, that she believes that she has seen the boyfriend’s truck in her neighbourhood. As well, immediately after the EPO was issued, on February 9 the boyfriend texted the girlfriend. The girlfriend argued that these actions demonstrated that the boyfriend was not willing to comply with the EPO. As well in September, the boyfriend contacted the girlfriend’s ex partner, with whom she has a son, in an effort to “compare notes” and essentially collaborate against the girlfriend.
In assessing whether the EPO should be confimed Justice Malik cited Siwec v Hlewka 2005 ABQB 684 and noted:
“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.
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.”
Justice Malik set out the test for confirming an EPO, the applicant must prove on a balance of probabilities that:
family violence has occurred;
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
Justice Malik noted that the legislation also allowed him to grant a King’s Bench Protection Order, revoke the EPO, or confirm the EPO. In making such a decision the following factors must be considered:
Balancing the factors supporting granting the order versus the restriction on the liberty of the person subject to the order
The stigma associated with protection orders
The potential misuse of the order
The ripple impacts a protection order may have on the family ecosystem and parenting matters
In refusing to confirm the EPO and in deciding to revoke the order, Justice Malik noted:
“In my view, the landscape between the parties has sufficiently changed such that there is no longer any seriousness or urgency that would justify the confirmation of the EPO. The parties are physically separated and have not had any physical contact with each other since the granting of the EPO. Any short term or urgent need to physically separate the parties and keep them separated has long since been satisfied. The Respondent’s parenting of the Parties’ Child is subject to supervision and further court order. The Applicant has not alleged that the Respondent’s contact with the Parties’ Child has in any way been inappropriate or has put her safety and health at peril. I recognize that the Applicant’s allegations have led to the Respondent being criminally charged and while these charges may be relevant to my assessment, they have yet to be determined and in the meantime, the Respondent is presumed to be innocent.”
If you require assistance with a legal matter related to an EPO, or King’s Bench Protection Order or have questions or comments, please feel free to Contact Us.