Protecting Yourself
Restraining Orders
A restraining order is an order made by a court which orders a person or persons to stay away from you. The order can include special terms that state how far away the person must stay from you and identify specific locations where the person must not attend or try to contact you, for example, your home or workplace. The order can also be extended to cover any children in your care. The order can also specify that a person is not to contact another person by any means. If a person breaks a restraining order, they can be arrested and charged.
Please note that a court order provides some protection, but it is not a guarantee of your safety. You should continue to take steps to protect yourself and anyone else who might be at risk of abuse or violence.
Restraining orders in emergency and non-emergency situations
A restraining order is granted by the civil courts and can only be requested during normal court hours. It is possible to apply for a restraining order on very short notice. An application can also be made at the same time as an application for interim custody of children. When you apply for a restraining order you are called the applicant and the person against whom the order is being sought is called the respondent.
In a non-emergency situation, notice of the application for a restraining order must be given to the respondent. That person can then attend the application and speak about the order being granted or not from their perspective.
In an emergency situation, it is possible to make an application for a restraining order without giving the other person any notice, so that the order may even be available that same day. This is called an ex parte application. If an order is granted on an ex parte application, the court will give a future date when the order will be reviewed by the court so that the person who is named in the restraining order can be present if they wish. In the meantime, the order will be effective as long as a copy of the order is served on the respondent.
Another option if you are in an emergency situation, particularly if it is outside of normal court hours, is to call the police who will consider whether to apply for an emergency protection order on your behalf. Emergency protection orders can be obtained twenty-four hours a day with no notice to the other person.
Assistance in applying for a restraining order
In order to obtain a restraining order, it is necessary to make an application to a judge in the Court of Queen's Bench. For those with low incomes there is the opportunity to apply to Legal Aid for legal assistance in obtaining a restraining order. To find where your nearest Legal Aid office is situated and to find out other information about Legal Aid, see www.legalaid.ab.ca. If you are in an emergency situation and require a restraining order very quickly, you should be sure to tell the staff at the Legal Aid office. In Edmonton and Calgary, if you qualify for Legal Aid, you will then be sent to the Family Law Office who will take care of applying for the restraining order for you. Lawyers at the Family Law Office can also assist with other matters that may be covered by your legal aid certificate such as child custody issues.
In Calgary, there is also the opportunity for assistance from Calgary Legal Guidance based on financial needs. For more information, phone 403-234-9266 or visit their website at www.clg.ab.ca.
If you do not qualify for Legal Aid, you must then decide whether to hire a lawyer or to apply for the restraining order yourself. If you decide to hire a lawyer, the Lawyer Referral Service (toll free at 1-800-661-1095 or in Calgary at 403-228-1722) can give you the names and numbers of three lawyers who are in your area, and who practise in this area of law. You can see any or all of these lawyers free for half an hour before you decide which one to hire.
Applying for a restraining order yourself
If you decide to apply for a restraining order yourself, you can obtain an information package from the Family Law Information Centres in the courthouses in Edmonton and Calgary. The information package tells you how to apply for a restraining order without giving notice to the other party. The information package can also be found at www.albertacourts.ab.ca/familylaw/booklets.htm. If you apply for the order yourself, you are responsible for serving a copy of the order on the respondent.
Enforcement clause
The court will not automatically order specific terms of an order. You must be sure to ask the court for the terms that are going to apply in your circumstances and which are going to help keep you safe. If you have a lawyer working for you, you must tell the lawyer all relevant information so that they can make the right request on your behalf. In particular, it is very important to include a term that gives the police the power to arrest the respondent if the order is broken. This is called an enforcement clause.
After the order is made
Before you serve the respondent with a copy of any order obtained in his or her absence, you must first file your order with the court by taking the original and four copies to the Chambers Clerk in the courthouse. You will then be given two certified and two filed copies of the order. It is not advisable to serve the order yourself. You can hire a process server to do this for you. A list of process servers can be found in the Yellow Pages. After the order has been served the process server will give you an Affidavit of Service, which is a sworn statement explaining when and how the order was served. The Affidavit must then be filed with the court. This means taking it to the court office where the clerk will stamp it as filed and keep a copy for their records.
Registration of order with police
Once you have obtained a restraining order, you must be sure to register it with the police. The police keep the order on their computer system, so that if the order is disobeyed they can act quickly. In order to register with the police, you must file a Statement of Description of the person named in the retraining order together with a photo if possible. You must also give the police a certified copy of the order and a copy of the filed Affidavit of Service. Even if you had a lawyer obtain your restraining order for you, you must make sure that it has been filed with the police, either by the lawyer or by yourself.
Edmonton and Calgary police maintain Restraining Order Registries.
Edmonton:
Edmonton Police Service
9620 - 103A Avenue
Edmonton, AB T5H OH7
Attn.: Case Management Unit
Calgary:
Calgary Police Service
133 - 6th Avenue SE
Calgary, AB T2G 4Z1
Attn.: Case Management Unit
In other locations, you will need to contact your local police or RCMP detachment to find out where to register your order.
How long does a restraining order last?
It depends whether the order was made on an emergency basis or not. Emergency orders have to be reviewed where they are granted without the other party being present.
If the order is made on an emergency basis and the abuser is not present, the order will require that a copy be served on him or her. A date is given for the order to be reviewed. On the date for review the abuser may attend at court to state any reasons why the order should not be granted. If he or she is unsuccessful or does not attend court, the order will be made for a fixed period of time.
In a non-emergency situation, notice will be given to the other party and the judge will hear evidence from both sides before deciding to grant the order or not, and how long it will last for.
Enforcing the restraining order
It is a good idea to carry a copy of the restraining order with you at all times. If a person breaches the terms of a restraining order, the person can be arrested. If you carry a copy of the order you will be able to show it to any authority, such as the police, who can then take the necessary action in arresting the offender.
| Protecting Yourself - Continued: |
July 2003
©1998-1999 Legal Resource Centre of Alberta.
