Just another WordPress.com site

Legal Beagle

February Break up

As seen in the February issue of MSM

For a current issue please visit: http://www.mainstreetmagazine.net/GetyourFREEcopytoday.html

with Donna Kaye

Legal Beagle with Donna Kaye

LEGAL BEAGLE

With Donna Kaye

February is not always the month for love. Sadly more break ups happen this month then any other.  Sadly still is that sometimes this break up can be a traumatic ordeal, and a restraining order or peace bond maybe required.

Here are the most common FAQ regarding restraining orders, and peace bonds.

 

What is a restraining order?

A restraining order is an order made by a judge that orders a person or persons to stay away from you. It prohibits the abuser from hurting or threatening to hurt those named in the order. The civil courts grant a restraining order.

 

 

What does a restraining order do?

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.

NOTE: 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.

 

How do I get a restraining order?

A restraining order is granted by the civil courts and can only be requested during normal court hours. 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 his or her perspective.

In an emergency situation, you can make an application for a restraining order without giving the other person notice, so that the order may even be available that same day. This is called an ex parteapplication. If an order is granted on an ex parteapplication, the court will give a future date when the order will be reviewed by the court. 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 outside of normal court hours is to call the police. They 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.

In order to obtain a restraining order, you must make an application to a judge in the Court of Queen’s Bench. If you have a low income you can apply to Legal Aid for legal assistance in obtaining a restraining order. To find where your nearest Legal Aid office is, and to find out other information about Legal Aid, see http://www.legalaid.ab.ca. If you are in an emergency situation and require a restraining order very quickly, make sure you 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, you can get assistance from Calgary Legal Guidance. See http://www.clg.ab.ca or phone (403) 234-9266. Financial limits apply to qualify.

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 (403) 228-1722 in Calgary) can give you the names and numbers of three lawyers who practice 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 located in the courthouses in Edmonton and Calgary. The information package tells you how to apply for a restraining order without giving notice of the application to the other party. The information package can also be found at http://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.

The court will not automatically order specific terms of an order. Make sure you 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 she or he can make the right request on your behalf. 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.

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.

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 restraining 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 you.

Edmonton and Calgary police maintain restraining order registries.

Edmonton:

  • The Chief of Police
    Edmonton Police Service
    9620 – 103 A Avenue
    Edmonton, AB T5H 0H7
    Attn: Case Management Unit

Calgary:

  • The Chief of Police
    Calgary Police Service
    133 – 6 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?

Emergency Basis

If an emergency order is granted and the abuser is not present, the order will require that a copy be served on him. 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 final 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.

Non-Emergency Basis

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, and how long it will last.

In both cases, the judge decides how long the restraining order will last.

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 or breaks 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.

What is a peace bond?

A peace bond is an order from a criminal court. It is an order that requires someone to keep the peace and obey any other conditions that the court puts in the order.

What does a peace bond do?

A peace bond can be used as a form of punishment when someone has committed a minor criminal offence. The offender can be bound over to keep the peace for up to one year, which means that he has to stay out of trouble and not be charged with any criminal offences.

A peace bond can also be used in the situation where a person fears for his or her safety, or the safety of his or her children or property. This could be a situation where you are subjected to certain kinds of abuse. A peace bond could not be used to protect from emotional or financial abuse. A court can grant a peace bond that requires the abuser to have no contact with you and to stay away from specific locations.

How do I get a peace bond?

You do not need your own lawyer to apply for a peace bond, so the process can be less expensive than applying for a restraining order. Your role in the process is as a complainant. You make a formal complaint to those who work in the criminal justice system and they then handle the matter. The process can take longer. A peace bond can only be applied for during normal court hours. In an emergency, it can be faster to use the procedure offered under theProtection Against Family Violence Act to obtain an emergency protection order.

Each jurisdiction may have a slightly different procedure for applying for a peace bond. The police or the local Provincial Court-Criminal Division will be able to tell you what to do in your area. In Edmonton, after you have obtained a file number from the police, you have to call the Provincial Court-Criminal Division and ask for an appointment with a Justice of the Peace. The Justice of the Peace will take down details of your complaint and forward it to the Crown Prosecutor’s Office, which will determine if there are grounds for a peace bond. If there are grounds, a summons is issued for your abuser to appear in court. In a situation where the Justice feels that someone may be in great danger, he or she can order the police to arrest the alleged abuser and bring them to court right away. You have to be prepared to appear in court and give evidence as to why you are seeking a peace bond. If your abuser does not show up, the court may issue the peace bond if satisfied there are grounds. Anyone found to be in breach of a peace bond can be charged and convicted of an offence.

How long does a peace bond last?

A peace bond can be granted for a maximum of twelve months. As with a restraining order, make sure that you carry a copy with you at all times so that, if necessary, a police officer knows that he or she has authority to arrest a person in breach of the order. As with restraining orders, there are agencies that can assist with obtaining peace bonds.

For a list of victims’ agencies see http://www.gov.ab.ca/just/victims and follow the link to Related Agencies. The local police department will be able to tell you what assistance is available in your area.