Exclusive Home Possession OrderA court order requiring that one spouse leave the family home and prohibiting that spouse from entering the home or being near the home. The order is granted under Alberta’s Matrimonial Property Act, and can be obtained for a home (house, suite, apartment, condominium) that is owned, leased or rented.
An exclusive home possession order can:- Direct the abusive family member to vacate the home for a specified time- Restrain the abusive person from entering or visiting the home if the victim requests it- Order an abusive person to pay the rent, lease or mortgage- Under some circumstances, grant a victim possession of the furniture in the home and the family vehicle- Suspend the right of ownership of either or both the victim and the abusive person (suspending right of ownership means a person cannot sell the home, even if the person is the legal owner. An exclusive home possession order gives the right of possession, not right to ownership)
Application for an Exclusive Home Possession OrderA spouse must apply for an exclusive home possession order. It is recommended that the services of a lawyer should be obtained when making a request for an exclusive home possession order, as the legal procedures can be complicated.
After the application for an exclusive home possession order has been made, the abusive person will be notified that a court hearing will take place and he or she will be given an opportunity to oppose the order.
In deciding whether or not to grant an exclusive home possession order the court will consider the availability of other accommodations for both spouses, the needs of the children, the financial circumstances of the spouses, and the conduct of the two spouses if the court determines that is relevant.
If granted, the exclusive home possession order will remain in effect until the term of the order has lapsed, or until a second order is granted by a Justice terminating the first order.
Limitations of an Exclusive Home Possession OrderIt is unlikely that a victim will be able to obtain an exclusive home possession order if children will not be remaining with him or her and if there has not been any violence. The court will always try to take into consideration the interests of the children and will try to place them in a situation that is as close to normal as possible.
If a person is living on a First Nation reserve, she or he will not be eligible for an exclusive home possession order. Under the Indian Act, the federal government regulates reserves, so the provisions in the provincial Matrimonial Property Actregarding property do not apply.
Under the Indian Act, the Band Council controls how property and housing on the reserve are divided among members of the band. Provincial family laws giving a person a right to claim exclusive possession of a home do not apply.
Things to RememberThe victim should keep a copy of any court order with herlhim if the victim wants police to enforce the order. The police must see the order to know if it has been violated.
If the abused person invites hislher spouse onto the premises, that is a breach or violation of the exclusive home possession order and the police will be hesitant to enforce it.
If spouses begin to live together again, the exclusive home possession order is no longer in effect.
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Application for a Restraining OrderA package referred to as ‘Package #24, Restraining Order Without Notice’ is available at the Family Justice Services, Family Law Information Centres or at the front counter of any other Court of Queen’s Bench office. There is no fee for the package or for the application.
- Must be obtained in combination with another legal action (e.g. divorce)- Victim seeks restraining order through the Court of Queen’s Bench. Victim must complete affidavit or questionnaire as part of the application process- Application must happen during normal court hours- Lawyer not required though one may be helpful- No court fees for the application, but will require a process server to serve the restraining order on the accused- Restraining order is not in effect until the accused has been served notice- Can be put into effect fairly quickly (within 24 hours) Conditions
- Can be ordered for up to 6 months, and can be renewed- Violations of the restraining order are not a criminal offence. If the restraining order is breached, the offender could be cited for civil contempt- Restraining orders are public documents. Some individuals (i.e. those in same gender relationships) may be reluctant to apply Things to remember- A copy of the restraining order should be kept on the victim at all times, in case the victim needs to verify that a restraining order is in effect- If a respondent violates a restraining order, notify police immediately- If the respondent is unlikely to comply with the restraining order, the police may not be able to protect the claimant. The claimant should arrange for other safety measures as well as the restraining order
A Queen’s Bench protection order may be issued during the review of an emergency protection order or may be ordered after an application before a Queen’s Bench Justice.
Available only to victims of family violence, as defined in the Protection Against Family Violence Act (please see Domestic Violence module).
A Queen’s Bench protection order could be helpful to a victim of domestic violence who would benefit from some of the other conditions available only through a Queen’s Bench protection order.
In addition to all the condition of an emergency protection order, a Queen’s Bench protection order can also include the following conditions:
- Require the abusive family member to reimburse the claimant for monetary losses suffered as a result of family violence (for example, legal expenses, loss of earnings or support, medical and dental expenses, moving and accommodation expenses, out-of-pocket expenses for injuries, legal expenses and costs of an application for the protection order)- Allow either the claimant or respondent to temporarily possess specified personal property such as a vehicle, cheque book, bank cards, children’s clothing, medical insurance cards, identification documents, keys or other personal effects- Instruct either the claimant or respondent not to deal with or harm property in which they both have an interest- Require the respondent to post a bond to ensure compliance with the terms of the order- Require the respondent to receive counseling- Authorize counseling for a child in the care of the claimant, without consent of the respondent- Any other provision that the Court considers appropriate
A Queen’s Bench protection order is not in effect until the respondent has been served notice of the order.
Application for a Queen’s Bench protection orderWhen a Justice of the Court of Queen’s Bench reviews an emergency protection order, the Justice may revoke, continue or change the order. If the Justice continues or changes the order, it then becomes a Queen’s Bench protection order.
No application process or fee is required of the claimant if a Queen’s Bench protection order is granted as part of an emergency protection order review.
Victim application for a Queen’s Bench protection orderA victim of family violence may apply directly to the Court of Queen’s Bench for a Queen’s Bench protection order.
The victim may appear before the court without legal representation; however, obtaining a lawyer would be helpful. The court may also give permission for the victim to be represented by someone other than a lawyer.
When a victim applies directly for a Queen’s Bench protection order, the victim can hire a lawyer privately, or obtain a lawyer through Legal Aid, or through Court-based victim assistance programs in Edmonton and Calgary.
Individuals who have applied for a Queen’s Bench protection order should consider requesting that that it includes a provision requiring the respondent to come back and satisfy the court that all conditions have been met.
A Queen’s Bench protection order can be ordered for up to one year and may be extended for further one year periods.
Changing a Queen’s Bench Protection OrderIf the victim would like to change a Queen’s Bench protection order, she or he may complete an Application and Affidavit to explain the rationale for the changes. This is submitted to Court Services and a court date is scheduled and the victim is required to hire a process server to notify the respondent of the court date.
If only the respondent would like to change the Queen’s Bench protection order once it is in place, the respondent would have to file an appeal within the appropriate time.
If the claimant moves and wants the respondent to continue to be restrained from going to the victim’s new home, the claimant should seek a new provision for the Queen’s Bench protection order.
Conditions and limitations of a Queen’s Bench protection orderThe Queen’s Bench protection order is not in effect until the process server or lawyer hired by the victim has served notice to the respondent.
Violation of a Queen’s Bench protection order may be a criminal offence or the basis for a citation for civil contempt.
The claimant is responsible for informing the police if an order has been breached.
If the claimant allows the abusive person back into the home, the respondent may technically be in violation of the order regardless of the claimant’s intention. However, the circumstances of the violation might make it difficult to enforce the protection order. As well, contact by the claimant may make it harder to obtain a protection order in the future, especially if no further acts of family violence occur during this contact.
The Protection Against Family Violence Act’s provisions prohibiting contact may apply on First Nation reserves. However, each Band Council must pass a resolution to amend its bylaws to adopt the provisions included in the Act, in order for the Act to be applicable.
Things to RememberA copy of the Queen’s Bench protection order should be kept on the claimant’s person at all times, in case the victim needs to verify that a Queen’s Bench protection order is in effect.
If the respondent violates the Queen’s Bench protection order, it may be a criminal offence. The claimant should report the violation to police.
If the respondent is unlikely to comply with the Queen’s Bench protection order, the police may not be able to protect the claimant. The claimant should make additional plans to protect his or her safety in addition to the Queen’s Bench protection order.
Legal Remedies Regarding the Matrimonial HomeProtection order conditions regarding sole occupancy of one’s homeUnder the Protection Against Family Violence Act, emergency protection orders and Queen’s Bench protection orders may grant exclusive rights to occupy the family home to certain family members for a specified time.
Emergency protection orders and Queen’s Bench protection orders may direct police to remove abusive family members from the home temporarily, or direct to police.
Application for a Peace Bond- The victim does not need a lawyer to obtain a peace bond- The victim contacts the Provincial Court Criminal Division Clerk’s Office or the local police to request a peace bond- Requires an in-person hearing to have a summons issued for the defendant. In addition, the victim will have to attend court to give evidence at a hearing of why the other person is a threat. Victims should always report the acts to police firstto determine if a criminal offence has occurred- The Crown prosecutor will assist the victim with the actual hearing- No court fees for application Peace Bond Conditions- Can be ordered for a maximum of 12 months- Can include no contact conditions, area restrictions, weapons prohibitions and other conditions the court thinks are desirable to secure the good conduct of the defendant (i.e. counseling)- Violation of a peace bond is a criminal offence and an offender who breaches a peace bond can be arrested and charged. The penalty for violating a peace bond can range from probation to a fine to a term of imprisonment for up to twoyears- Peace bonds are public documents. Some individuals (i.e. those in same gender relationships) may be reluctant to apply Things to Remember- It is helpful for the victim to keep a copy of the peace bond with them to show police, if needed - If the respondent violates the peace bond, the claimant should contact police immediately- If the respondent is unlikely to comply with the peace bond, the police may not be able to protect the claimant. The claimant should arrange for other safety measures as well as the peace bond
Legal Aid is not free to the applicant. Individuals who receive Legal Aid will have to pay some of it back. When the case is finished, the Legal Aid Society will seek repayment. If it is difficult for the individual to make the repayment, the Legal Aid Society will usually negotiate terms, which will allow the person to repay the loan. The individual may be asked to provide some sort of security for repayment such as signing a promissory note.
Legal Aid lawyers from the same law firm cannot assist both the victim and the accused. In smaller communities, there may be only one law firm. Thus, if the accused person seeks assistance from Legal Aid before the victim does, the victim may be declined service. The victim could seek Legal Aid in another community. Legal Aid Alberta
If spouses begin to live together again, the exclusive home possession order is no longer in effect.
An order by a justice of the peace or a provincial court judge that can prohibit an abusive family member from being in the same location, or contacting or communicating with other family members. The emergency protection order may have other conditions.
An emergency protection order can be applied for 24 hours a day. If the judge or justice of the peace agrees that conditions of the Protection Against Family Violence Act are met, the EPO can be granted immediately.
An EPO is available only to victims of family violence as defined in the Protection Against Family Violence Act.
An emergency protection order can:- Provide immediate protection for a victim of family violence- Keep the accused away from the home, workplace, school or other places where family members might be present- If granted, the emergency protection order takes effect immediately.
Conditions and limitations of emergency protection orders- Violation of an emergency protection order may be a criminal offence or the basis for a citation for civil contempt.
If both the claimant and the respondent want to cease the EPO, they may be able to have the matter brought forward to Queen’s Bench Chambers to apply for a consent order vacating the EPO.
Things to rememberIf the respondent breaches the emergency protection order the claimant should contact police immediately.
A copy of the emergency protection order should be kept on the victim at all times, in case the victim needs to verify that the EPO is in effect.
An EPO can be granted whether or not criminal charges have been laid.