What Are the Grounds for Obtaining a Protection Order?
A Protection Order is a court order granted on an emergency basis, without notice to the other side, in situations where there has been domestic violence or stalking. It is a form of restraining order meant to protect the victim by limiting where the perpetrator of domestic violence may attend, and restricting or completely prohibiting the offender from communicating with the victim or coming within a certain distance of them. A protection order may also apply to children under the age of 18 who are in the care of the applicant.
The Domestic Violence and Stalking Prevention Act, sets out the procedures that must be followed in order to obtain a protection order or set it aside.
In order to obtain a protection order, the applicant must first filling in a form which can be obtained at a court office or police station, and then testify in front of a Judicial Justice of the Peace (a type of magistrate). The applicant must convince a Judicial Justice of the Peace that the matter is urgent, and that he or she has been subjected to stalking or domestic violence.
Domestic violence is defined in the legislation as:
- any intentional, reckless or threatened act or omission that causes bodily harm or property damages;
- any intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damages;
- conduct at reasonably, in all the circumstances, constitutes psychological or emotional abuse;
- forcible confinement;
- sexual abuse;
The same legislation defines stalking as occurring when a person, without lawful excuse or authority and knowing that another person is harassed as to whether or not that person is harassed, repeatedly engages in conduct that causes the other person reasonably, in the all the circumstances, to fear for his or her safety.
Not everyone can apply for a Protection Order. For example, if one is applying for a protection order on the grounds that they have been verbally or physically abused, they must be either related to the perpetrator or have been in a dating or intimate relationship with them. If a person has been subjected to violence or threatens by someone who is not a family member, spouse or boyfriend/girlfriend, they would not be able to apply for a protection order, but may have other remedies such as applying for a Peace Bond.
What Provisions Can Be Put in a Protection Order?
If the Judicial Justice of the Peace finds that these conditions have been met and that a protection order is warranted, the Judicial Justice of the Peace may make an order that places conditions on the offender including:
- That the offender may not communicate with the applicant or contact the applicant directly or indirectly. In some cases, these no contact provisions may also extend to children in the applicant's care.
- That the offender not come near any place that the applicant or a specified person happen to be or regularly attend. For example, the order may forbid the offender from going to the applicant's home, his or her job, their school, or the children's school or daycare, etc.
- That the offender not follow the applicant or any specified person.
- That the offender turn over any weapons to the police and authorizing the police to search for and seize weapons.
- That the applicant be given temporary possession of necessary personal belongings.
- That a police officer assist that applicant in removing personal belongings from the former family home.
- That the police assist the applicant in removing the offender from the home.
How Long Does a Protection Order Last?
If a protection order is granted, it is usually in effect for three (3) years unless the Judicial Justice of the Peace feels that it should be in place longer, or a Judge orders otherwise.
Once the protection order is granted, it will be served on the offender by the police and they will then be notified that the applicant has obtained the order.
A protection order is a serious matter and it should not be obtained lightly. It may severely restrict the ability of the offender to deal with his or her property, or even have contact with one's children.
Once a person is served with a protection order they have twenty (20) days within which to object to the order by filing documents in court and if they fail to do so then the order remains in place for the duration of the term set out by the Judicial Justice of the Peace, usually three (3) years.
What Should You Do If You Are Served With a Protection Order?
If you happen to be served with a protection order it is extremely important that you obtain legal advice in order to determine what the best course of action is, particularly if the order places restrictions on your contact with your children.
If the person who is subject to the protection order objects to the order they will need to apply to set it aside within 20 days of being served with the order. This requires following certain steps and filing documents in court.
A person who wants to set aside a protection order must pay to obtain a transcript of the evidence given by the applicant in front of the Judicial Justice of the Peace and also file court documents challenging the order and setting out their reasons for objection. The documents then need to be served on the Applicant, notifying them of a court date.
If the matter cannot be resolved, a hearing in front of a Justice of the Queen's Bench will be held to determine whether or not the protection order should be left in place, varied or set aside. This will be essentially a trial and both sides may call witnesses and testify.
Conclusion
Protection orders are very serious remedies and should not be obtained lightly, nor should they be ignored if one is served with a protection order. Breaching a protection order can result in criminal charges, and if convicted can lead to fines and even jail.
If you have any questions concerning whether to obtain a protection order or challenge one that has been obtained against you, please contact our firm for further information.
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