Listen to Charles Fair, Calgary Divorce and Family Lawyer, discuss what you should do if you are served with an emergency protection order. This webinar was hosted by the Canadian Centre for Men and Families.
Watch: What To Do When Served With An Emergency Protection Order
Contact Calgary Family Lawyer Charles Fair
Family Litigation deals with disputes over legal rights and responsibilities regarding children, financial support, property, physical safety and divorce that arise after the breakdown of important personal or family relationships.
Calgary family lawyer Charles Fair is prepared to defend your rights and provide representation to individuals or businesses to right a wrong, honour an agreement or obtain compensation for a personal injury. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
My name is Vanessa [CCMF]. I'm here on behalf of the Canadian Center For Men and Families, Alberta, where I'm a proud volunteer. I'm very pleased to introduce Charles Fair, of Fair Legal. Charles has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring that their rights are protected, and that they are treated fairly
Fair Legal deals with criminal, family, and civil litigation matters. And Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we aim to serve. In other words, men struggling due to intimate relationship breakdown and turmoil.
At CCMF Alberta, we are committed to meeting men where they're at, so that they can feel heard and validated and have conversations that matter to them.
We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children. We believe that providing mental health support for men leads to optimal parenting outcomes, a reduction in family violence, and lower rates of suicide.
So this month's topic is What To Do If You Have Been Served With An Emergency Protection Order. This may be an emotionally charged topic for some of you. And if that's the case, we're very glad to have you here, and hope that Charles' expertise and insight can be of use to you.
We also want to invite you to visit our website, which is ccmfalberta.ca if you want to access the additional supports in the form of individual or group peer support, domestic abuse, trauma, recovery, counseling, or other legal education programs like this one.
So we do ask that you hold your questions until the Q and A period. Or if you don't want to forget them, send them in the chat at any time to Melanie. Melanie is here as Charles' assistant. So she will be fielding the questions and reading them out for the Q and A. So again, if you have questions, send them by chat to Melanie. Not to me, not to Charles, and above all, please be respectful of our guests and of your fellow participants. I'm going to ask that you keep your, your microphones muted and your camera's off, especially because we are recording and your privacy is important to us.
So the last thing I want to mention is, after the session, there will be a post- session survey in your email. So whichever email account you gave at the Eventbrite will have a survey with just a few questions about what you thought of the session and what other topics you'd like to see us cover in the future.
Without further ado, Charles Fair.
Thank you very much for coming. And I look forward to hearing what you have to tell us.
Great. Thank you very much, Vanessa. It is certainly an honor to be here assisting the Canadian Center For Men And Families with your mission. I do represent both men and women in various messy situations they get into. And one of the things I like about CCMF is that it is not an organization that doesn't care about the rights of everybody involved in this, but it's really focused on the rights or the, the, the special unique needs of men as they go through the breakdown of intimate partner relationships.
I've been practicing law, as Vanessa said, for about 30 years. And it's always been important to me to, to really work towards getting the right result, the right resolution in very messy situations. And an Emergency Protection Order is, kind of ranks up there in terms of, of a messy situation that can arise in your, in your life.
And almost by definition, the, the EPO is going to come at you by surprise because it is obtained without notice to you. And we're going to go through that process. So it's, this, it can cause a great deal of emotional turmoil when you get something like that. And it's important to reach out for assistance. And that's where CCMS has got some good resources there.
It's also important to get good legal advice early on at, almost as soon as possible, because there are things that you can do that are going to be very helpful in this situation.
This is, we're going to cover off, what is an EPO? What can an APO do? What is the process and how do you protect yourself?
The Emergency Protection Order is granted when violent or threatening behavior occurs. And there's evidence that immediate protection is necessary, that family violence will resume or continue.
It's only granted in a family violence situation, so there has to be an intimate partner relationship. Sometimes it could be a parent, a child relationship, or, or a relative. It doesn't involve just family or a stranger or workplace people, there are other court procedures for those sorts of things. But the, the EPO proceedings are just under the Protection Against Family Violence Act. And that is a specific provision that deals with family situations.
It basically is intended to prevent a family member from contacting the person who's obtained the, the EPO, and to stop them from contacting you at your home, your work, your school, or other places.
If the EPO is not complied with, then it can result in a criminal conviction or criminal charges anyway, so, and then of course there's other proceedings involved in that. I do represent clients who are facing both EPOs on the civil side, which is what we're talking about today, and also on the criminal side, if there are related criminal charges.
So I want to talk, talk about the process here. So how does somebody get an EPO against you if, without you even knowing about it?
Well, the first, the first thing is that they go and contact the police, or the court, directly. And then there's, there's a questionnaire that is, goes over. And if we've got some time, I'll figure out how to display the, a sample one of these questionnaires. It's the family violence investigative report questions that the police use and the justice of the peace or provincial court judge will go through a similar set of questions. And those questions are, are very, very, very basic.
And as a result of that - let me just see if I can, I don't know if you can, let's see if I can get that, that document up here. My apologies here.
Now, can you guys see this screen? It says "Family Violence...". Okay. How about this here? I will just change this for -
Okay, how's this? Can you see that? So it should say Family Violence Investigative Report Questions.
Okay. So you'll see here that it covers the, this kind of a checklist that the police or the justice of the peace will cover, make sure that they are covering what kind of relationship that we're dealing with.
And you'll see that it's, there's some very basic questions, and there's very short answers. And you'll see, and I've just taken an actual one that we got through the criminal disclosure proceedings that I've deleted some of the, or all of the
identifiable information, but you'll see that, that there are certain questions here that it can be easy to, kind of, fudge on the truth of the answer.
And you'll see here, one of the questions is, is there a previous domestic violence history? Is there a history of violence or abusive behavior in the relationship or with a previous intimate partner? It's an interesting answer here that says none reported. This question doesn't ask whether there's been anything reported, it asks whether there's a history, and this person, and the answer is telling I think, and it actually resulted in this case with no restraining order ever being granted against the, the subject. So the complainants attempt did not succeed here.
But you'll see then there's other questions. There's the complainants perception of compliance. Does the complainant believe the suspect will disobey terms of release? And this is, this is a questionnaire that's used in the criminal charging context, as well as in the, very similar questions for the EPO process.
Um, so then there's, um, perception of safety and you see again here. They hear the question is complainants perception, perception of safety is a complainant fear for their safety or further violence to themselves or children or others. This is a really interesting answer to this question. As supervised visit with their son are currently in place to a family core of those super visits, supervised visits, where, because there was allegations to the police, you can see how this kind of the police didn't do anything.
So you can see how there's a bit of a, of a, a feedback loop here, that is, can sometimes play, come into play here. You see alcohol and drugs, mental illness, suicidal ideation, these are all, red flags for concerns that somebody is going to do something drastic. Then there's some questions about the relationship escalation and abuse.
But you see each, in each of these things, the question is very short. The answers are very short. Again, there's more, more questions here about threats, firearms, use of firearms, all of these are, are relevant to the context when they're, they're trying to decide whether or not to grant one.
Alright. So, going back to the, the, are we back to the order here? Okay. Back to the screen here.
So, so after those questions are done, there's some screening questions. The, it ends up in front of a provincial court judge and the provincial court judge has to make a decision, as to whether to grant the EPO. And they'll usually ask for
some additional questions to get some details, to kind of flesh out some of the very, very basic questions that have been answered.
Now, if the EPO is granted by the justice of the peace or the provincial court judge, it, it has to be reviewed in the Court of Queen's Bench within 10 days. So this is a very temporary order. It's intended like a circuit breaker. It's just, whatever's going on, stop. Stop and, and, so you can see that the, a judge or justice of the peace hearing this application on the first go around is going to be very careful to not make an order when, when maybe they should have. So if they're going to err on the side, probably of making the order rather than saying, "Oh well there's not enough here, and so we're not gonna, we're not gonna make the orders", so they're more likely to say, "Oh, there's enough", and it doesn't have to be very much.
And the reason why they can justify that is, well, yes, there's a restriction on your liberty, but it's only about 10 days before it's going to be reviewed in the Court of Queen's Bench. And that's the opportunity for the respondent to give their side of the story. So we, we, it's not a big concern. The EPO is that circuit breaker event. Let's everybody stop, calm down, let's take it in the Queen's Bench and see what happens. Now, then the police serve the EPO.
I just want to make a, a comment about the involvement of the police. The police may or may not be involved. As a complainant, a complainant can go directly to the provincial court, and there's lots of assistance that is given to complainants in that case to, to facilitate making the complaint.
They can go to the police and the police will sometimes direct the complainant to go to court themselves, or sometimes the police have the authority to go to court.
And then what happens is that they're interviewed by the, the, and maybe they're the only one giving evidence before the, the provincial court judge. And essentially what they're doing is giving hearsay evidence based on the answers that they got to those very basic questions on that, that investigative seminar - or questionnaire.
So the, the police have an opportunity, or they, the authority to go and make the, the application for an EPO, even if the complaint isn't, is not involved. And that's important because in, in cases of serious domestic violence, oftentimes the, the victim is, is really so concerned about their safety that they're afraid to do anything, or they're just in a frozen state. And sometimes the police will step in and, and act.
If it's a really serious case, there's probably criminal charges pending, or there's a, maybe there's an arrest warrant out for the individual. And then what the police will do is they'll get the EPO, they'll do, they'll serve all the papers and arrest the person and, and process them. And then, then typically in the criminal proceedings, the individual will be released, but the EPO remains, in effect.
So, what happens then when it gets reviewed in the Court of Queen's Bench? So, first off, and this is an important thing, is that, that a transcript from the proceedings in front of the justice of the peace or the provincial court judge are automatically prepared by the court. And any other evidence that's before the provincial court is sent up to the Queen's Bench.
This is a procedure that is set out in the, the Protection Against Family Violence Act. It's mandatory. So there will always be a transcript.
What's happened since COVID is that the, the, the written application or affidavit that may have been submitted in normal situation in support of the application seems to have fallen by the wayside. And these applications are now done via video conference or even telephone conference. And that other additional paperwork doesn't get included with the, the materials going up to the Queen's Bench, 'cause it doesn't exist. So, in any event, the transcripts are prepared. They can be obtained by the, by either the person who's the subject of the EPO, or they could maybe, retained by, or obtained from the court by counsel.
It's a very short time period that you have to respond to the, the EPO. It has to be back in the, the Court of Queen's Bench within 10 days. And when they, when it first gets back into court, the, the court will have, has to make a decision on whether to review the, to continue the order and for how long, and whether there's any additional terms.
It's important, if you have an opportunity, to get on this right away, to get that transcript and file an affidavit in response to it prior to that first hearing. If you don't, and that means that there's a very, very short timeframe because the transcripts are typically not available right away and there's some delays, so you really may only have two or three days.
Sometimes it has been, and that's a discussion to have with your lawyer as to whether or not to file those proceedings, file that affidavit right away, or to ask for an adjournment. There are some advantages to not filing proceedings in that first place, but that's really a discussion you have to have with your, with your lawyer, because if you don't file materials, then there is a, a risk that the, the
court will just simply, if they think that you had enough time to file the materials, the court will just simply proceed as if you didn't. You had the opportunity, you didn't do it. So again, that's a tricky question to have, or discussion that you have to have with your lawyer.
The Court of Queen's Bench then says, okay, we're going to either continue it, but if there is a contest or a dispute over the facts, then it will get put over to a review hearing, an oral hearing like a trial, and that's usually two or three months out, and it is a very short trial and it's based on, in part, based on affidavits and in part on, on the oral testimony during that trial. Question then, well, what happens in the meantime? What happens to that, that order, does it continue or does it, does it fall by the wayside and then get reviewed later on?
Well, the, the judge hearing it in Queen's Bench has got, the first thing is, is there enough evidence that was in front of the, the provincial court judge to warrant a protection order? And if there was then, then the, the judge will consider any evidence that's before him or her that's opposing it and decide whether or not that evidence actually results in a real dispute or whether, you know, somebody, the dispute, the, sorry the, the response has nothing to do with the actual complainants, complaining about something else, in which case the judge says, well, it's pretty clear here. This EPO needs to be continued.
It's hard, if you're trying to represent yourself I've got to say it's very, very hard to make sure that you are staying on point and concerned, and dealing with exactly what the judge is going to be concerned about, because the judge doesn't have a whole lot of time. And so you need to make sure that you're responding materials are dealing exactly with what the judge is wanting to hear about.
If there is a dispute, then the matter will be put over for that oral hearing, as I said, and, and the, the judge is then in a very difficult position.
And here's where there's some debate in the law, I suppose, as to what happens. Because one resolution that sometimes can be, can happen is, instead of a one- way protection order - or, now at this point, it's, another name for it as a restraining order - the other way to, to resolve the issue is just simply say, well, there's, everybody's in conflict. Well, let's continue the circuit breaker. Let's continue that, that no contact. And will everybody just agree not to contact each other until this mess can be sorted out.
The problem is that, that the, the court probably doesn't have jurisdiction to, to grant a mutual no contact order without the consent of both parties. But that
consent is something that's often a reasonable way to resolve it, resolve the matter without looking quite so much like a terrible fault on one side.
I was in court this morning and a very senior judge was, making a comment that, that in his view, it is problematic when a complainant comes in with a complaint about the, another person's behavior, and then they leave court with a mutual, no contact order, which somehow says that they've done something wrong as well, or that there's a risk of them doing something wrong. So it's not guaranteed that a, that a judge will grant a mutual no contact order. It is, but I got to say that's not a unitary position in the judges, at least not in my experience, although that was a very senior judge now on them.
The, one of the other things that will happen at the Court of Queen's Bench is now there's an opportunity to really fine tune the terms of the order. So the justice of the peace may have got things wrong or just not dealt with things, not have known the whole picture. So some of the things that, that can change our provisions dealing with, well, what happens if you have children, you got to have parenting time. How do we allow contact to sort that out?
For that circuit breaker period, that initial emergency protection order granted by the provincial court, more likely to say, look, no contact to anybody. Just everybody, it's only ten days. It's not the end of the world. Let's shut everything down for ten days, no contact.
But then, once it gets into the Court of Queen's Bench, they'll say, "Okay. Well there's kids. The kids need to see their parent. Maybe it needs to be supervised. Maybe not". So what they'll do is they'll say, "Okay. Let's vary the order to, or continue it along with some other terms that says, okay, the parties can contact each other through their lawyers. They can contact each other when they're in court, you know, in the course of court proceedings, and that's not going to be a violation of that EPO". You want to make sure that the rules that are set out in that revised order in the Court of Queen's Bench are very clear. You got to say, well, what kinds of communication are allowed? Is it by email? Is it by text? Is it, are phone calls allowed? Are phone calls not allowed? What topics can be discussed?
And, and what's interesting about this process is that we assume that, that the, you know, once that EPO process is going, it's, it's really, really easy to say, oh my God, this is the end of the world. This is terrible. And then you go to the EPO and, and I've had parties - sorry that go to, we end up in the Queen's Bench review hearing, and the parties end up to agreeing to an order that's almost as if
the protection order never existed at all. And, and, and that's, there's some interesting dynamics as to why that, that happens.
So it's important when you've received an emergency protection order, it's really, really important to stay calm and say, wait a second, this is not gonna, this isn't the end of the world, necessarily. It, it might be depending on your, on what, what the circumstances were that got you into this. But there are, there's, there's lots of different outcomes that are possible.
Here's a quote from the, the Alberta Court of Appeal recently. And just, it gives, this is, gives you an idea of - this might be hard to read so I'm just reading it out. "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, or dealt with, must be objective early reasonable. Care must be taken at the hypervigilance 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".
So, you see, once you're into the Court of Queen's Bench, what's supposed to be happening is a very careful balancing of, of what the complainants impression of the, their, their perception of the fear that, their risk, with the the respondent's right to have liberty. The right to go about their business without undue restrictions on their liberty.
This is one of those things, this is the, you know, kind of the, the way the law is stated. I gotta say, judges are, are humans and, just like the rest of us, and they're going to have slight biases. There's going to be pressure, generally speaking, in the media and society in general. Those pressures will change from time to time. And, and sometimes what is viewed as maybe hypervigilance is, kind of, excused and the subjection, subjective perception is, of the complainant, is validated and says, well, that's good enough if she's feeling unsafe, that's good enough. That's more important that people feel safe than the imposition on somebody's liberty. But that's not the law, but that is sometimes what happens
Now, getting close to the end of the 30 minutes. I'm going to, there's a kind of a short list here of things. How can you protect yourself and served with an APO? The first thing is you got to stay calm and get counsel. Get a lawyer. It's, it's, it's only a circuit breaker. It's not the end of the world. It can be, if you, if you don't handle it right. But - sorry, I say that, not the end of the world, that's overstating it, but it's important to stay calm, get a lawyer.
The second point, don't try to change the other party's mind. Don't speak to them. Don't contact them. Don't violate the EPO. Do not sit outside their home or work open to have a chance to talk some sense into them. Don't even do anything nice. No gifts, no flowers, no cards. If you're allowed parenting time, don't include a little "thank you" card in with the kids' stuff when you're, when you're shipping your, your little girl back. That will get you into trouble and that will lead to criminal charges.
And you go "How on Earth do you turn this, does, does giving somebody a nice "thank you" card turn into criminal charges. Well, that's the way the law works, and so, if you're in this situation, don't even do something nice until you've clarified in the court of Queens Bench with the, with the review judge, what the terms are of the, the restraining order or the emergency protection order going forward, and you got to do that, and you got to then stay strictly within those lines. If you're allowed to talk about the kids, talk about the kids. If you're allowed to talk about the finances, talk about the finances. Allowed to talk about the kids, but not the finances, keep the con - the discussion strictly to the topic that's allowed.
Don't, don't stray into things like, well, you know, we could save a lot of money with legal fees if you just agreed to something reasonable, just don't do it.
Anything going straying out that will be grasped as an opportunity for the other side to make things worse for you. Okay?
If parenting time with children is allowed then, when you have the parent, that parenting time, don't discuss the events or the EPO with the children, it's really not a burden that they need to carry. What will happen invariably is if you talk to them, they will, you say, well, look, this is what Mummy or Daddy did to me, they got this court order.
The child is going to go back to the other parent and say, you know, Daddy said this, that you did this, or Mummy said you did this. And that is just going to land you in trouble.
Okay. So. I'll just say, you know, I'll just give an example. This is where, I think that EPOs can be abused because getting a lawyer is way more expensive than making that initial threshold complaint to the police or to the court that, that gets the other, gets your spouse out of your life. You get the kids. And sometimes it is subject to delay proceedings. So you can just see, I gave an example there. They, you know, one parent made, makes a complaint to the police or the court. They, they ask where the EPO, the EPO is granted, 'cause it's only temporary. And hey, after all, it's going to be reviewed by the Court of
Queen's Bench. The same parent then makes an application for sole custody or no, or supervised access for the other parent. And then they say, well, there's this there's EPO pending. And now you're in a, a bit of a gong show as it's bouncing back and forth between the courts.
The courts recognize that some of that happens. And so again, just because it's happening, doesn't mean it's the end of the world. You've got to stay calm, get legal advice. It is possible to sort that stuff out. Every case is different. Get legal representation. Follow the advice you get.
And the other thing is have realistic expectations. Every case is different. And, and, and maybe you do have a problem with, with anger management. Maybe you do have a problem. And, and you know, the more times I do this, you know, I start peeling away the onion and, and, and there's layers. And I go, you know, there's, there's always more to this, you know? Very rarely have I met somebody who's truly, truly evil to the core and irredeemable. There's almost always things that can be done to make things better. Sometimes there's, there's struggles with substance abuse or your own childhood experience of abuse or dysfunctional families.
This is this, you know, that's part of life. Every case is different, have realistic expectations, and accept what you can and you cannot change.
So those are my comments. We are your champions for justice when life gets messy. So there you go. I'm always, it's open for questions.
Awesome. Alright. You can hear me right, Charles? Yes.
Okay. So we've got a couple of questions here. The first one is: What if the police filed for the EPO on behalf of the claimant with false information added by the police?
Well, the, you know, that's the interesting thing. The, the, the transcript is, is, prepared, as I said, by the, the provincial court judge, it goes to the Queen's Bench. And you can say that it's false. Unfortunately, because of that, that, now, because of COVID, because there's the underlying affidavit, isn't always there, that sometimes there's a, it's, it's hard to catch that discrepancy.
If there are criminal charges, then the police will have to provide full disclosure in the, the context of bail hearings and that sort of thing. And so sometimes you can, you can get at the, the false statements there.
Unfortunately, you know, society has this belief that if you're charged with a crime and you're, then you're more likely than not guilty. Well we do have a presumption of innocence. And I've got to say, since I've been doing criminal law, I'm always amazed and somewhat disappointed at the number of times that the police are less than accurate in their, their write-ups that they, their summaries of the case that they then put on to the Crown in order for the purpose, purpose of instructing the Crown prosecutor on how to proceed.
There's missing facts, there's misstatements of facts. There's, when they're doing interviewing of witnesses, they don't ask for, questions that I think would be obvious questions to ask.
And so, so there's no easy answer for what happens if there's falsehood. What we do is, what I do as a lawyer is I look for red flags or signals that there's likely a problem and start unpacking that and, and - it's, it's hard. I got to say, sometimes it's hard to, sometimes, it's difficult sometimes to get at that falsehood. But if the matter is set down for an oral hearing in the Court of Queen's Bench, the falsehoods are going to be harder to keep going that long.
So it might take a little longer to get rid of the restraint, but if the, if the falsehoods are really, really serious, then it will, and sooner rather than later. And sometimes the other side can be convinced to drop it.
Okay, great. The next question: What if the EPO hearing, and it says, ask for a hearing as it was false allegations, is denied due to counsel not showing up and the EPO is then converted to an MRO or, so a mutual restraining order, and the applicant then continually and repeatedly breaches the MRO.
Well, there's, there's probably too much detail in there that, that gives a, is an opportunity, sorry, there's probably a little bit more detail in there that I can really properly speak to in this setting. But this is one of the difficulties with the mutual restraining order or that the mutual no-contact order, that it's, that if, if there is not truly consent, it probably shouldn't be granted.
And if somebody isn't showing up, if the complainants, isn't showing up, or the complainant's lawyer isn't showing up, then the court probably should just be dismissing the thing altogether. Just because you, you've made the application doesn't mean it's guaranteed. Now, if it's the respondent that's not showing up, the respondent's lawyer, you know, if, if - it depends on, on, on which side of this you're on, if you're a complainant or, or a - sorry, and the complainant
usually will, there's duty counsel that will assist, and their job is to kind of process all of the settings. So the duty, the, the complainant will typically have at least some representation and there should be duty counsel available for the subjects of the, the proceedings.
But if you're, if there's no duty counsel and you don't have a lawyer, don't agree to an order, just ask that it be put over for a few days or few weeks. Now, where the tricky part here is, it sounds like the person who's the complainant is continuing to contact the person. Well, that puts you into a very, very difficult situation. And the advice is, if you see that it's, if you're the subject of an EPO or a restraining order, or mutual no-contact order, or anything, and you see that it's your, your, the complainant that is calling you or sending you a text, do not respond, do not pick up the phone, do not engage. It's, it's - you would be amazed you, you know? You would think, well, they're the ones that are initiating the contact. Yeah. But you don't have to pick up the phone.
You know, it's no fun being dragged into court in handcuffs, in an orange suit, having to explain that, that, you know, I just, you know, I thought that there was some change or some emergency I needed to answer the phone. And then, and then you get released from jail. Yeah, that's fine after you've spent a day or two in jail and the, and the judge says, well, I'm not going to keep you in jail because after all it was, you know, you didn't initiate this, but don't pick up the phone. You know, it's not worth getting that lecture.
And, and, you know, I've been in court and heard that lecture. So, you know, the, so the - don't engage. Don't engage is probably the number one thing, but you also need to keep a record of it. Because how could the person be, be afraid for their safety if they're continuing to contact you? That's one of those, those red flags that we look for, those, those signs that there's something amiss with the whole proceedings.
Okay. Next question is: Is there any way to obtain the EPO application that was filed?
Yes, they, as I said the, the transcript of the proceedings is, has to be done by statute. And any other materials that were before the court must be provided to the court, Court of Queen's Bench. And if they're not, I think that, that you're entitled to kick up a fuss and say, look, we're not proceeding until those, those proceedings, or it shouldn't be, it shouldn't be continued if there's been a violation of those, of those, that statute.
The problem has been because of COVID, the underlying application was done by phone and doesn't actually exist. And I think that's a problem that hasn't been adequately addressed. So far, when I've run into it in my practice, I've been able to sidestep the issue and get to a resolution that, that, that we, we didn't have to confront that issue head on.
Okay. Is there any suggested wording that can be added at the 10 day mark that can open up more communication with positive change to help bridge a healthy interaction with the best interest of the child in mind?
Oh, sure. Yeah. Now, and I got to say, I, I had one where, where the, the first review order, it was gutted so badly that it was, there was hardly anything left. And then my client purchased the home two doors down from his own home so that, that his ex could rent it from him. So that the kid would be, like, two doors away. I, you know, anything is possible with consent. The judge is, if, if you're asking the judge for an order that says, allows for some kind of counseling, it is, it, one, one term that I've seen is that they will allow for counseling, contact during counseling. Or mediation or other court processes.
I wouldn't expect to see more lovey-dovey language than that. Sorry, I don't mean to lessen that. Okay.
Okay. So here is a scenario, I guess. So it says my ex-spouse has been sending me random messages once a month or every second month, through email and WhatsApp, that she wants to reconcile and we should meet to discuss. End of September, 2021, she mentioned in an email she was walking close to my workplace. Do I have enough grounds to file an EPO against her? I have been suggested, it has been suggested by my lawyer to ignore her messages.
You know, I'm going to talk a little bit about what I do when I'm consulted by somebody who wants to get a restraining order.
The, the, you, it really, and going back to what the court's concerned about, you're asking to restrain somebody's liberty, and I think that there has to be a legitimate concern for your safety. If it's just an annoyance, there's much easier ways to deal with it. And, you know, so simply by ignoring the behavior. If there's a risk of harm, sometimes it's safer to take steps to minimize that risk without applying for a restraining order because sometimes restraining orders, regrettably, can inflame the situation.
The, and one of the things that I think is, is important in this is we, we tend to see the legal system in, kind of, these black and white terms. This is some kind
of machine. It's not, this is, real people are involved here with real emotional needs or sociological needs or whatever, whatever's going on. And, and sometimes legal proceedings are brought because there's an underlying need to engage in a kind of a weird tango with the, with your ex. So, I don't know what's going on. If somebody wants to get a restraining order and there really isn't enough to getting, to get a restraining order, objectively, I would caution against it. But then the question is, well, why is this necessary? What else is going on? Because it may be that there's some, there's other stuff that's, that's underlying this, that isn't coming to the surface. And maybe that's something that is best not dealt with in the courts, but, but dealt with elsewhere. You know, through counseling or whatever.
Okay. So the next question I'm going to ask is: What is the difference between an EPO, Queen's Bench protection order, or restraining order, and an undertaking to stay away from someone?
Well, they're all similar in the sense that they are, the goal is the same, is to restrain somebody liberty for the protection of another person. The, the Queen's Bench, and some of it is based on the, the underlying statute. So the EPO, the emergency protection order, is something that is only granted under the Protection Against Family Violence Act, so it only applies to intimate partner situations.
A Queen's Bench restraining order can be obtained, in, in, in any kind of situation. You know, a dispute between, you know, coworkers that's spun out of control can be dealt with with a Queen's Bench restraining order.
The other thing that happens with Queen's Bench restraining order is it's typically done with notice to the other party.
So you can still do it without notice, application in the, in the court at Queen's Bench, but you're going to have to really satisfy a Queen's Bench judge that there's that, that you need it without notice. 'Cause otherwise they're going to say, well, let's hear the other side of the story right off the bat.
The, what was the other one, the Queen's Bench restraining order, the EPO, the undertaking to not contact somebody. The undertaking not to contact somebody is typically done as part of release conditions under the criminal proceedings.
So if there's a violation of those, that's a criminal offense, just like it would be a criminal offense to, to violate the, the EPO or a restraining order.
Okay. I'm gonna throw about three questions together. So far three that I've seen that all are relating to false allegations. One thing I'm going to reference, for anybody who hasn't seen, we did a Charles did a webinar back in September regarding false allegations. So feel free to either look on CCMF's website, our website, or our YouTube page for that recording of that video. So there's going to be three separate questions, Charles, but they're all related.
So, first off, are the repercussions for the person making false allegations, especially if it has been done multiple times. Second question: Why does there seem to be no consequences for false allegations resulting in a life damaging EPO? And the third one, had the initial allegation of which the arrest was made was confirmed to be false during detailed statements by the complainant. Why do the, why did the police not charged the complainant for misguiding? What can be done to take action?
Okay. I'm going to deal with the second one first because - read the second one again.
Hold on a second. Just a second. Hold on. Where is it now? Initial, oh, the second one, sorry. I just lost where I put it. Why does there seem to be no consequences for false allegations resulting in a life damaging EPO?
Okay. The reason why I wanted to start with that one is because the EPO is that circuit breaker event, and it only lasts 10 days. So it shouldn't be life damaging. If it is life damaging it's because it wasn't handled correctly at that, at that initial Queen's Bench stage. The question about, you know, it's really a rising out of the issue of false accusations, and these are serious, and the court is aware that these can happen. And the court is, and, and sometimes there, the court will step in to make an order that deals with it.
And there's two kinds, the third question dealt with why don't the police charge the complainant with mischief? Which is the criminal charge that would be applicable in that case. I think the police are really reluctant to wade into that situation largely because, I think because of the Me Too movement and, and, and those kinds of social pressures.
So I think the police are under a fair bit of pressure to not disbelieve, a complainant. Kind of like the EPO judge first hearing it, the provincial court
judge or the justice of the peace are figuring, you know, what, better be safe. I'm going to make a decision. The safe decision is always the protective order. Pass it off to somebody else. And that's been the concern I've had is that oftentimes the police aren't asking the right questions. And one case that I had, after the Crown withdrew the charges in the middle of the trial, I, I wrote to the Crown and said, you know, why, why aren't the police getting better training and, and on, on how to do these things right?
And they never replied to me, you know, I got other things to do and try to fix the police system. And not to say that the police, and police have got a tough job, but I, I am in no way, anti-police, I've got military background myself, you know, police have got a very difficult job. I, I respect what they do. Sometimes I think they, they, they, they should make those, those decisions, but they don't.
Now back to the first question then is, is, well, what happens in family context when you've got a, somebody who's continuing to make false allegations? Well, probably the biggest difficulty is you've got to really, really establish that they are making false accusations. That they are vexatious litigants. Getting to a conclusive court finding on that can be very difficult and expensive.
Because what happens is, is the court is typically making decisions in the short- term based on affidavit evidence. And if you've got, you know, if it's a "he said, she said" kind of thing, one affidavit says one thing and the other affidavit says the other thing, the court really doesn't have any basis for deciding who's telling the truth until there's a trial. And that trial, if, you know, if it's an oral hearing under an EPO, that trial is only going to be, you know, it's going to be, you know, three, four or five months away and it's going to be a very short trial, possibly less than an hour total length. And that's just not very much time to decide anything other than, yeah, we got enough. We're going to leave this thing alone. We'll leave the restraining order or the, the EPO in place, or there's not enough here and it's, or enough time has passed and we're just gonna let it go.
My lights just turned off. Melanie, can you go turn those lights back on for me? So the issue issue then is, is, you know, will the courts take action? They will. It, it does take some time to get, to get to that point, unfortunately. But the courts do, do have several ways to deal with it. In extreme cases, they will change custody of, of children. They will, they can impose orders that vexatious litigants not be allowed to file applications without actually getting court approval to file the application.
So first they've got to apply to the court for permission to file their application. And that's, the courts do make those kinds of orders from time to time. But, you
know, when it comes to the, the changing custody of the kids, I mean, think about it. You gotta be really, really sure that, that the kids are gonna be better off with that change in custody. And that's not always clear to the court.
Because now you're dealing with a different test, which is best interest of the kids. And that may not sit well with. Okay, well, yeah, the parent has got the kids is making these false accusations, but is it enough to change custody?
That's where you got some difficulties there. And unfortunately, and this is where, where I think CCMF is really right to identify some of these, these issues, because it's, it's, partly, it's an access to justice issue. It's, it's a, it's a systemic problem of how do we sort this stuff out without losing some of the benefits that we have of a traditional legal system, like presumption of innocence until proven guilty, you know? The opportunity to be, to, you know, hear from both sides and make a decision based on hearing both sides of the story.
Those are, those are two very important legal concepts that don't jive very well with, with fixing some of these problems with false accusations.
Okay, thanks. I know we're coming up on time, but if people want to stay on, we'll go an extra, maybe 10, 15 minutes if that's okay, Vanessa? 'Cause we have a bunch, a few more questions we can try to address.
Perfectly fine with me.. Okay, great.
You can always tell me to shorten my answers!
We've got a few more, so some of them may be a little in-depth. Okay, so I'm going to throw two questions together that came from the same person, but they're kind of related. So the first one is: What is a typical timeframe from the complaint and completion of the questionnaire to a hearing then, if granted, to when the EPO is served?
And then the second part of that question is: If an EPO is granted for the 10 days and then dismissed, is it on my record?
Okay. The, the last question is the easiest. The EPO is not a criminal charge. The fact that it's granted is not a criminal conviction. That's the good news. I should have made that clearer. An EPO is not a criminal charge. It's not an, and the fact that one is granted is not a criminal conviction.
Now, the question of how long it takes, well, the, it really depends on how urgent, the various participants view this, this matter. It doesn't take very long to get in front of a justice of the peace. In fact, they, they actually are available 24 hours a day, seven days a week. I think. There might now be a gap in that I don't know, but the, it is quite easy to get in quickly in front of a justice of the peace. You know, sometimes within hours, sometimes, you know, might be a day. And then after that, the, the, the, the time getting it to serve is, you know, it goes into the regular process. And then the question is, well, how long does it take the police to serve the order? Well, if the person can be found quickly and it's regarded as urgent, then they'll, they'll serve it quickly.
My experience, they tend to get those things serve fairly quickly. And, of course, if they delay that, that creates a problem.
Now, if you violate the, the, EPO before you've been served with it, it's actually not a violation. What, what they, the police are obliged to do is tell you, hey, look, I've got this, you've been, we've got this EPO here that, that, that, that we have to serve on you. Now you're served. Now you need to comply. You either comply now or, right away, or we'll charge you, right? So th they have to follow that kind of process. They can't just charge you because there's a complaint that's been made if you haven't been served.
Okay. The next one is, I guess it's, it's kind of a scenario. After my former partner filed for the EPO, she moved out of the family home and took the contents and kids to an undisclosed location. She has refused to disclose it to my council. The EPO was replaced with a restraining order without prejudice, and neither order contained any conditions regarding restricting my knowledge of where my children are housed and what conditions they're under. Do I have a right to know where they are?
So the answer is yes, and this is where, they, there's, you need to deal with that in the family courts because the family courts, whether in Queen's Bench or in provincial court family, that's the best place to deal with that issue. But if there's an underlying restraining order or EPO, you're going to also have to deal with that in the family court.
If somebody is, is withholding, parenting, the children from the other parent and they don't have the legal authority to do so, it's actually a criminal offense if it gets to that, that stage. So, but there's a lot of steps that have to be involved.
You have to deal with it in family law.
If there's, if the order doesn't say that you're - well, here's the thing on a restraining order. You, the, typically they'll say, well, you can't go within 200 meters of where the person lives. Well, doesn't that mean you have to know where the person lives. Which is kind of a quandary. If you don't know where they live, you could find yourself in violation of it at any time. So, so clearly the, the, it's going to be difficult to sustain a charge for violating an order if you don't know where the person lives, and it doesn't say where you're supposed to stay away from. I, it's not impossible to, to get convicted in that kind of thing.
But it really, you really do need to get your orders in the family court in that situation because the family is going to be, family court is going to be concerned with what's in the best interest of the children. And the parent has the right to information, unless it's in the children's best interests not to have that information. And that's going to be tough. Unless there's a real risk of, of, of safety concerns.
And that's where this, the, this, the EPO process and the restraining order process is subject to abuse because the, the complainant can get a, you know, an easy, cheap, you know, they don't have to retain a lawyer, they just have to sound convincing enough times, and then they get a de facto family court order that's very expensive to, to deal with.
Okay. Sounds great. Next question is: How does one put over an order that means they're not able to see their children? By this question, I do not mean the process. I'm referring to the emotional angst and damage to the parenting relationship that this is creating. Police officers and third parties may often bring the evidence before a JP to seek an EPO. This is essentially hearsay evidence, which typically in a court proceeding is insufficient to get such a restriction on a person. It is, it is accepted in EPOs. Why? And is this violation of one being able to face their accusor?
Well, yeah. And, and, in my case this morning I raised that very issue and I can, that the, the, there were, it wasn't an EPO case but it was, it was a change in parenting. An application to, to make a substantial change to a parenting arrangement. And there were lots of allegations about what the children were saying. And the judge was very cautious about wholeheartedly believing it, but said, you know, if the children, his answer went on something like this, is, there's a difference between, you know, coaching your children to say something and then saying this is what they're, what they're saying, or interrogating the children to drag out of them what, what, what you want them to say. Or the children come to you with a concern about the other parent and what are you supposed to do? Plug your ears? So the cat's out of the bag. Well, then the question is, so, so it's, it's the, what the court did this morning is that
they appointed counsel for the children so to, to kind of get to the bottom of where the children were at.
The, the issue of hearsay in the EPO, that initial EPO context, is, it's a balancing, it's a balancing issue. You allow it in that first stage, so you get that 10 day circuit breaker, and then you're, you're into the Court of Queen's Bench, and then you can challenge that. And, and, you know, if the, if the complainant isn't willing to, to carry on at that initial stage, then, then, in that case, what happens is that the EPO is not continued. And that can and does happen. That's - you know, just because, I think that's sometimes what happens is a complainant gets talked into this procedure, you know, by friends, you know, overactive busy bodies. Well, whatever, I don't, I don't mean to say that. But they can get talked into doing some - or the police, you know, the, the police don't ask enough questions and they get all, they, they jump to conclusions and they, they go get the order, and then it gets into Queen's Bench and then the complainant says, well, you know, I don't, I'm not real happy with what's going on here.
They started to feel maybe a little guilty about it. Maybe they start feeling like, well, this is, this isn't really what I think is in the best, children's best interests. And then you get a little bit more of a nuanced response.
Did that answer that question?
In a roundabout way, yes. I think so.
So we're just going to do about three more questions. Hopefully won't be too long.
So an EPO morphed into a MRO, mutual restraining order. The MRO has expired approximately one year ago. What's the expected impact during upcoming high conflict custody/divorce proceedings?
Well, you know, from a process point of view the, the, the, the courts actually don't like seeing the restraining order stuff on the same court proceedings as the file, as the family stuff. So they say, yeah, okay. We know, we understand that there's proceedings there and so they, it, it - remember that, that circuit breaker principle operates for that first 10 days, but it's, it's typically not a lifetime ban.
And th the idea is, well, after a year, surely people have calmed down. You're talking about now is a, is a high conflict situation. Which means the dispute is still carrying on. The, now that the thing is, is over, doesn't give you license to
go do what you shouldn't have been doing in the first place that, that got you into that pickle. So, so just because the orders expire doesn't mean, wahoo, I get to go and be obnoxious and, and, and stir the pot in some other way. Now, what it does mean is, is, if your communications with your, with your ex, are polite and respectful and, and staying to the, to the topic, the, and they go and complain, you'll go look, you know, there's something wrong here. She's complaining, or he's complaining, about just normal, polite, respectful communication. And they recognize it's, it, when you got a high conflict situation, it's hard to see through the, the chaos that's going on and, and seeing what's clear. And I, and what I often say is look, the really, the bottom line is you just got to focus on your kids.
You know, you can't solve all aspects of the dispute with your ex, but when you got kids, you can just focus on your kids, on your relationship with your kids.
What's, what's in their best interest. What's, what's good for them. Focus on what they're interested on and ignore the rest. You don't have to fight every fight in a high conflict divorce.
So the next second last question: From your practice and life experience, what percent of EPOs do you feel are false or unnecessary and, and done for the purpose of gain by one party?
Well, I, you know, I don't, I'm not sure that I can give a fair representation of, of what the overall situation is. I, I typically just represent good people. I, and I don't mean that lightly. I did have a client that was in custody on a very, very serious domestic violence charges. Physical, serious long-term physical injuries. And the police had him recorded, recorded phone calls out of the remand, with a friend outside that were surely suggestive of continued risk of violence to the complainant. So that, that client, you know, had some, some real baggage that he had to deal with, I think would be the fairest way to say it.
And, you know, I was working with him because, the fact that somebody made a mistake doesn't mean that they're not entitled to legal representation. So I, well, I say, you know, I only represent good people, you know, I do represent people across the spectrum of this stuff. And, in that case, the, when I tried to broach the subject of, you know, we maybe need to take a look at, at what's going on here with your behavior, within a couple of days he'd fired me. So, and, and I say that that's because - now, he fired me, things didn't go particularly well for him after that. And a year later, his mother called me wanting to, wanting to know whether I'd be interested in taking him on again.
So it's an interesting dynamic when that happens, but I, I think of, of resolving court cases as more than just, you know, getting to a win-loss. It's not about a score in a win-loss column. It's about trying to figure out how to make the situation better. So, as a result, my perspective of it is, well, you know, I, I think that, that a lot of these restraining orders are probably unnecessary, but the system doesn't, doesn't really know how to deal with it any other way. You go on to, you know, and multiple websites are out there. If you're in an abusive relationship, get yourself safe and go apply for a restraining order. That's the advice again and again and again. Well, I'm not sure that that's, that's - I would prefer to see a much more nuanced approach, but that's, that's me and my, my rosy-eyed view of the world.
Okay. And so the last question we're going to take today, and I do apologize that there was a few people that we didn't get to. Is there any avenues that you can suggest to help bridge the triangle outside of legal work? So other courses or programs, of course, other than CCMF?
Well, you know, there's, there's some interesting programs on, that, that there are some social workers who've got experience in doing child custody evaluations and that sort of thing. There's social workers or counselors or psychologists that specialize in repairing broken relationships with kids.
There are court orders that contemplate like a practice note 7 intervention in, in a, in the Court of Queen's Bench, contemplates measures to restore the relationship between a parent and child. So there are resources out there and, and, you know, I think CCMF is a great resource because you know, the, the biggest problem, or a big problem I think, is you're feeling like you're alone and the world is against you. You're kind of, you're thinking that the system is biased in favor of women or men or whatever it is you think the bias is. And, and, you know, it's important to be able to talk that stuff through with people and see, and realize that that you're not alone on this.
And it's, and it's important to get context and say, okay, this is, it's, you know, I'm not, I may have made a mistake, maybe I didn't make a mistake, maybe the other side has made a mistake, but there's always, there's always some kind of solution to it. Sorry, that's a, I started to ramble there didn't I? A little bit, but I'm going to throw one more question, really quickly, okay? And try to try not to make it too long of an answer, try not to ramble.
So do you think that the EPO process, sorry that the EPO process is abused and broken? Yes or no. And then, either way, why is this, is it, if it's broken, is it because of money, career, or why do the agents within the system, those most able to affect change, fail to do so? Kind of a loaded question.
Well, yeah, it's, and it's kind of beyond my pay grade. Here's the problem with the court system in general. It's a, it's, it's, it's based on a feudal power structure from medieval England and France dealing with feudal Lords, and that's where the, a lot of the courts system and rules came into play.
And, and, and so it has a, a kind of a unitary focus on how to, how to fix things. And, and a restraining order seems to be like, well, that's what you do. It's kind of like putting somebody in jail. 'Cause that's what that feudal power structure thing does.
But think about what would the alternative be? So if you don't do that, what you, you compel somebody to take psychoactive drugs to fix what kind of problem you think they have? It, so it's, it's a difficult question. I do think that because it's, they can be given out almost like candy. It's, there are some risks of abuse. But if you go look at the, how the, the legislation is actually structured, it's structured to, to have safeguards in there.
And what's interesting is that the Protection Against Family Violence Act begins with, the first preamble is, the legislature recognizes that the family is the basic unit of society. I don't know whether that is, is really regarded when the courts are making a decision, but there's at least the thought that what we should be doing is trying to preserve family relationships rather than weighing in with, with a hammer to try to fix something. So I don't know. Maybe I showed my bias on that. I, as I said, I represent both women and men and, and on both sides of, of restraining order and EPO applications. Sometimes they're necessary. Sometimes they're, they're abused. How was that for a lawyer's answer?
I think that was a wonderful answer. And, so was that all of the questions, Melanie?
Yeah, that's all that we'll do today. There was some more, but we just can't get to them all. So I apologize for that.
And, and, you know, you can always reach out to Melanie and, you know, schedule something. We can, we can maybe, or maybe Vanessa's going to comment on that, I don't know. I would always like to help.
Well, that's, that's a really, that's a very kind offer. And I also, I, I, I wanted to make by way of some, some closing remarks, particularly for anyone who wasn't here for my opening remarks that, that CCMF Alberta, the Canadian Center for Men and Families, Alberta, that put on this presentation with Charles
- and by the way, Charles, thank you so much for that rich, informative and sensitive presentation. We will be putting on more of these in the future, from Charles and from other volunteer lawyers.
But if you're here at all, I am positive that you're under tremendous stress. So I'd really like to encourage you to visit our website at ccmfalberta.ca, to learn more about our programs to support you if you are experiencing intimate partner breakdown or any kind of aftermath of that with your family, with family court, with domestic violence recovery, with trying to keep connected with your children. We offer a variety of programs and, including the kind of peer support that Charles sort of alluded to when he said that you're not alone.
We have a lot of amazing guys in our groups that are, that have a lot of experience and are here to help you. So ccmfalberta.ca. Please come shore up your mental health with us and avail yourself of more of our legal education programs.
So thank you for coming.
Thank you, Charles. Thank you, Melanie. And we'll see you next time.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.