Why Challenge An Emergency Protection Order (EPO)
In Newfoundland and Labrador, Emergency Protection Order's (EPOs) are granted under the Family Violence Protection Act. Their main purpose is to protect spouses who are in danger of being injured by their partner. The rationale is to provide protection before the harm occurs, especially in situations where there has been past incidents of family violence.
In order to get an EPO, a person only has to go to the nearest Provincial Court and fill out the EPO application. If a judge approves the EPO application, the police would then serve the EPO on the Applicant’s spouse. Typically the conditions on the EPO will require the spouse to leave the matrimonial home or family residence that they shared (if the Applicant still lives with their spouse), to have no contact with the Applicant as well as their children, remain away from the Applicant and to keep paying their mortgage and other household expenses. The order typically stays in place for 30 to 90 days. In short, EPOs can have very severe and immediate consequences for people who are served with them.
Limitations of An Emergency Protection Order
Legally, EPOs seem to violate the Canadian Constitution as they impose restrictions against a person without providing them with the right of a hearing beforehand. They are granted with no input from the party against whom the order is directed and are based solely on the word of the Applicant. Because the EPO is put in place based on one-sided information, it can be abused. They may be applied for by people who are going through a separation and are trying to ameliorate a less than ideal living situation by getting the spouse out of the couple’s residence or who are trying to obtain an advantage in a custody dispute by keeping a spouse away from children. Additionally, and most importantly, even though an EPO itself does not mean a spouse has committed any criminal offence, if the spouse breaches a term of an EPO they can be charged with a Criminal Offence.
How to Challenge An Emergency Protection OrderIf you are served with an EPO you do have options as they can be challenged and either set aside, terminated or varied. If you have just been served with an Emergency Protection Order in Newfoundland, here is what you need to know:
- You only have 10 days to challenge the EPO so you need to act quickly.
- The forms to challenge the EPO are located at your nearest provincial court and are also available online.
- There are 3 options when challenging the EPO, to set aside, terminate or vary. Setting aside and terminating are essentially the same thing and serve to end the EPO. Varying allows some conditions to be changed and are usually granted to allow access to children.
- Once you submit the forms to challenge an EPO, the court will set a hearing date. The court will also arrange for the opposing party to be served.
- At the hearing the burden of proof is on you, as you are applying to overturn or vary the EPO. The standard of proof is on a balance of probabilities which means more likely than not.
- The test for an EPO is that it is needed urgently to protect a spouse.
- If you breach the EPO you will be charged with a criminal offence.
Call the Lawyers at Gittens & Associates to Challenge Your EPO
Many people who are served with EPOs usually have no experience with the justice system. While we appreciate going to court to challenge an EPO can be intimidating, it is really something that must be done if you are innocent of the allegations against you. It can not only have consequences in a family law situation but could also lead to criminal charges being laid against you even if you unintentionally breach the EPO, such as by accidently dialing your spouse’s number. Here at Gittens & Associates, our family lawyers have a lot of experience challenging EPOs. If you are served with one call us as soon as possible for help at 709-579-8424. We are located in St. John’s, Newfoundland and are here to help!424. We are located in St. John’s, Newfoundland and are here to help!