What is a Protection Order?
A Protection Order may be granted pursuant to The Domestic Violence and Stalking Act, provincial legislation that provides remedies to the successful applicant in cases of stalking and domestic violence.
Applicants may seek a Protection Order against another person who is his or her spouse/common-law partner, family member (whether or not they have lived together), who is in a dating relationship with the applicant, or against the other biological/adoptive parent of his or her child. Someone who has been the subject of stalking can also apply for a Protection Order under the Act, regardless of the type of relationship he/she had with the person against whom an Order is sought.
Adults can also apply for a Protection Order on behalf of a minor.
Grounds for Obtaining a Protection Order
Someone applying for a Protection Order can do so on a relatively quick basis, without need for a lawyer and without notice to the responding party, by providing sufficient evidence under oath to a designated justice of the peace (JP). When the responding party is served with the Protection Order, it will already be in effect.
A Protection Order may be granted by a JP without notice to the responding party where it is determined that: (1) the respondent is committing or has committed domestic violence against the subject, or is stalking or has stalked the subject; (2) the subject believes that the respondent will continue or resume the domestic violence or stalking; (3) the subject requires protection because there is a reasonable likelihood that the respondent will continue or resume the domestic violence or stalking; and (4) due to the seriousness or urgency of the circumstances, the protection order should be made without delay.
The Act defines the Domestic Violence as including the following acts and omissions:
- (a) an intentional, reckless or threatened act or omission that causes bodily harm or property damage;
- (b) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damage;
- (c) conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse;
- (d) forced confinement;
- (e) sexual abuse.
The Act defines Stalking as occurring “when a person, without lawful excuse or authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, repeatedly engages in conduct that causes the other person reasonably, in all the circumstances, to fear for his or her own safety.”
Common Elements of a Protection Order
Protection Orders can include a number of restrictions and conditions, such as a prohibition against attending at the applicant’s place of residence, school or work, a prohibition against direct and indirect forms of communication, a requirement for the responding party to turn over weapons, and more.
Protection Orders are typically effective for a 3-year period, but a designated justice of the peace may grant an Order for a longer time period if it is deemed necessary.
What Should you do if you have been Served with a Protection Order
Although these Orders are granted “without notice” to the responding party, meaning that the designated justice of the peace has only heard evidence from the applicant, they can be varied or set aside on an application to a court. A judge has jurisdiction to vary the terms of the Protection Order or to set it aside in its entirety. The Respondent must establish on the balance of probabilities that the Protection Order should be set aside or varied in order to be successful.
There is a limited period of time in which a responding party can make an application to vary or set aside. If you have been served with a Protection Order, you must file an application with the court no later than 20 days from the date you are served. Contacting a lawyer immediately is the best next step. Make sure the lawyer is aware of the date on which you were served to ensure that the deadline for filing does not lapse.
If an application is not filed within 20 days of service, the responding party is unable to file without first obtaining leave from the Court. This can amount to further and unnecessary legal costs, without any guarantee that an application will be allowed to proceed.
In the interim, the responding party needs to take care to comply with the terms of the Protection Order, even in circumstances where the responding party is confident that the Order is unwarranted and likely to be set aside. The Protection Order is effective immediately, unless and until a Judge holds otherwise.
What Happens if Protection Orders are Breached
Protection Orders are registered with the Canadian Police Information Centre (CPIC) automatically and breaching any condition can have serious criminal consequences. If you are unsure about the contents of a Protection Order you should consult with a lawyer.
How Can a Lawyer Help if you’ve been Served with a Protection Order
The process for applying to the Court to vary or set aside a Protection Order requires the responding party to take diligent and timely steps in compliance with Court rules and procedures. A lawyer can help to navigate the process, prepare necessary materials and ensure that the application is properly filed and served on the applicant. Once a Court date is obtained, your lawyer appears with you in Court and advocates on your behalf.
The first step is contacting a lawyer to discuss your situation.
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