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Spatial relationships need court structure – not always an EPO

 Medina Shatz

When a person is in need of protection from family violence an Emergency Protection Order (“EPO”) may be sought from the court. The decision of whether there are grounds for an EPO must be guided by Section 2(1) of the Protection Against Family Violence Act where it states that an EPO is warranted only if family violence has occurred; that there is  reason to believe that the family violence will continue or resume; and 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. Once an EPO is granted in Provincial Court there is a confirming viva voce (with live evidence) hearing where it is determined if the EPO is to be continued. It was at such a confirming hearing where the Alberta Court of Queen’s Bench, in the case MM v BM 2017 ABQB 532 (CanLII) decided that an EPO should be vacated because the claimant, MM, was not to be believed.

In the Court’s assessment MM:

  • gave a purposefully misleading account of events where she alleged she was a victim of violence;
  • initiated the incident where conflict between she and her ex-husband occurred;
  • embellished her version of events from the first appearance in Provincial Court to the hearing for review;
  • misrepresented facts that were challenged with video evidence taken from a phone.

Additionally, MM relied on incidents in the past with sketchy details and incidents that did not constitute “family violence” within the definition of the Protection Against Family Violence Act. Other allegations by MM were remote, seriously distorted or vague.

The Court was clear that allegations must be substantiated; allegations must be relevant to the claim or threat of violence. The allegations cannot be groundless suspicions.

Notwithstanding that the EPO was vacated, the Court did grant mutual restraining orders finding that, while in the circumstances an EPO was not appropriate, the court needed to go further than just vacating the EPO. The parties still had access to the other’s home and they resided on the same property. As such, they needed some kind of regulation and structure for their “spatial relationship” and that structure had to be court ordered. The Mutual Restraining Order was specific enough to include use of the shared driveway and access roads to the property and demarcated the parties’ respective “areas” restraining them from coming onto the other’s area – the Court took the time to understand the very specific needs of these parties and found a way to protect them both.

 

2018-11-14T09:00:09+00:00November 20th, 2018|

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