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(Why can't the police give me a restraining order?).

Q. Recently, I phoned the police because my husband was beating me. The policeman who responded to my call told me to get a restraining order but he said that he couldn't help me get one. Why can't the police give me one?

A. A restraining order is an order granted by a Court of Queen's Bench judge. It is given in a situation where a person, usually a woman, is afraid for her personal safety and/or the safety of her children. Usually, there will have been an incidence of violence that causes the granting of the order to be necessary.

If you are legally married, an application for this order may be made if an application for divorce or judicial separation is begun. If you are living in a common law situation, you must begin an application for assault or trespass. These are civil, not criminal applications.

You will need a lawyer to help you get a restraining order. If you do not have a lawyer, you may look in the white pages of the telephone book for the Lawyer Referral Service in your city. It will give you the names of three lawyers who practice matrimonial law. If you cannot afford a lawyer, you should call Legal Aid (also in the white pages) to see if you quality for assistance.

Once court proceedings are started, you may, through your lawyer, ask the court for an order restraining your spouse from assaulting or harassing you or your children. The order may also restrain your spouse from coming near your workplace or home. The order may be obtained very quickly in an emergency. In the application, you are called the petitioner. The person you are seeking to restrain is called the respondent. You will need to swear an affidavit that sets out in some detail any incidents of violence that have occurred, or your reasons for believing that violence may occur or re-occur. This affidavit is filed with the Clerk of the Court and used in an application before a judge. Generally, the affidavit is sufficient evidence and you do not need to be present in court. Your lawyer will show the affidavit to the judge and answer questions that the judge might have. If the application for the order is granted, your lawyer will give the judge an already prepared order for signing. Restraining orders are generally given for a period of 3 months. They may be renewed if necessary. It is up to you, through your lawyer, to apply for a renewal of the order.

Recently, there have been two new developments with regard to restraining orders in Alberta. The province dropped the $200.00 filing fee previously charged for filing restraining orders. The Alberta Department of Justice hopes that this will help victims of family violence get the help they need promptly. Also, the Calgary and Edmonton Police Services have begun entering the names of spouses that are subject to restraining orders onto the Canadian Police Information System. In order to do this, the police need to be given a certified copy of the restraining order and the order must contain the following information:

* a clearly stated set of conditions or terms to be met by the respondent

* specific authority and direction given to the police

* proof that the respondent knows about the restraining order

As well, the police require a full and accurate description of the respondent, including:

* full surname and given names as well as any aliases

* date of birth

* sex

* race, height, weight, hair and eye colour, scars marks or tatoos

* current address and telephone number, and employer or school address and telephone number. In Edmonton, the police also need:

* the home address of the petitioner and the address of any other place where the respondent is specifically restrained from contacting the petitioner

* an undertaking given by the petitioner that the police will be promptly notified of any variations, amendments or extensions of the order immediately after filing with the court.

Once the restraining order is served on the respondent and filed with the police, it can be a very effective tool for protecting a vulnerable spouse and children and preventing violence. The police may be called and will take the respondent away, usually to jail, where he will be kept until an appearance before a judge can be arranged. A copy of the order should be kept with you at all times to show to the police if required.
COPYRIGHT 1996 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

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Author:Teresa Mitchell
Publication:LawNow
Date:Jun 1, 1996
Words:747
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