How to Get Emergency Custody in Canada or a Restraining Order in Alberta
Are you concerned that your child's safety could be at risk? If so, you need to know that a restraining order can help to protect them from potential harm.
The courts aim to encourage healthy relationships between children and their families, despite circumstances surrounding the adults involved in the case. But, there are times when exposure to one or both of the child's guardians might not be in their best interest. When this occurs, it may be necessary to find out how to get emergency custody established.
In Canada, oftentimes even prior to their child's birth, parents have certain legal obligations to their children. This includes caring for the child's needs and keeping them safe and protected from harm.
The legal system takes the safety of children very seriously. And, you should too.
No child deserves to be placed in unnecessary danger.
Read on to find out how to get emergency custody of a child in Canada!
What is Emergency Child Custody?
Before you find out how to get emergency custody, you need to understand exactly what it means.
Emergency child custody is an order that grants immediate custody to one parent, or potential guardian. In some cases, the courts will award emergency custody to the state, or to an outside party.
An emergency petition for custody is not something that is usually necessary in most cases involving children. But, there are times when this is the best course of action to take for the sake of the child.
An ex-parte order for temporary custody grants custody in emergency situations and does not require notifying the child's parents or guardians. These orders may call for the child's removal from the home. Or, they may call for denial of visitation rights.
The court issues these orders on a temporary basis, usually until the date of a set hearing.
Unlike typical custody cases, a hearing to decide whether or not the order should remain in place will usually take place within days or weeks of filing. Normally, court cases may not be heard until months after they are filed.
Why is Emergency Custody Granted or Restraining Order Granted?
Judges are not fond of granting emergency custody without substantiated evidence for doing so. Unless there are specific elements present in a case, a judge is unlikely to grant emergency custody to a guardian or to either parent.
When there is the threat or suspicion that a child is in immediate danger, emergency custody may be granted.
Rules 14 and 15 of Ontario Family Court Rules outline how to get emergency custody of a child.
Alberta is different. You would need to either: i. get a restraining order; ii. involve child welfare; or, iii. in the heat of the moment, contact the police for an Emergency Protection Order.
There are specific reasons that courts grant emergency custody.
These include the following:
- The child is at immediate risk for serious physical or emotional harm from either abuse or neglect
- There is a recent and credible threat that the parent or guardian whom you are filing against is going to take the child out of the province or country against the custodial parent or guardian's wishes
- The parent or guardian who is being filed against has committed abandonment or cannot be located and served with court documents, despite efforts to locate him or her
In addition, you must have reasonable evidence of suspicion that supports a need for immediate action.
What to Do if You Are Not Personally Involved in a Case of Suspected Child Abuse or Neglect
There are times when someone who has no personal involvement witnesses, or otherwise becomes aware of, a reason to suspect that a child is in danger of harm.
If you suspect child abuse, neglect, or that a child is being threatened, but you do not wish to pursue custody or temporary custody of the child, you should immediately report your suspicions to proper authorities or an agency that has the power to take protective action.
If you are unsure about a child's circumstances but have a reason to suspect they may be in immediate danger, you should still report your suspicions, even if you have no plans or desire to file an emergency petition. Authorities will then perform an investigation to determine if the child's safety is at risk. When dealing with child abuse or neglect, it is better to be safe than sorry.
How to Get Custody of a Child -or- A Restraining Order
First, you should ask yourself if you have just cause to file an emergency petition.
Do you have a reason to believe that your child is being, or will be, abused, neglected, or abandoned? Or, do you believe they may be taken out of their legal jurisdiction without permission?
If you have a reasonable suspicion regarding your child's safety, then you should know how to get emergency custody to protect them.
This can sometimes be a scary process, especially if you believe the other parent may be dangerous even after a judge establishes temporary custody. But, don't be afraid to take action, even if this is the case. There are additional measures that can be taken to protect yourself and other family or household members if necessary.
Although this isn't something that should be taken lightly, when a child's safety is at risk, it's important that you understand how to get emergency custody and that you act quickly.
Steps You Should Take to Get Emergency Custody or Restraining Order.
If you want to know how to get emergency custody, then you need to know which steps to take.
The steps below explain how to get emergency custody of a child -or- restraining order against and abusive parent in Canada. Following these steps will ensure the courts protect your children from possible harm by an irresponsible parent or guardian.
Step One: Determine if You Have a Need for Urgency
If you are filing an urgent motion with the courts, which does not require the other party to be served before the judge orders a decision.
An ex-parte custody case would be classified as urgent.
Few cases allow you to file an urgent motion. But, an urgent motion is a crucial part of how to get emergency custody granted by a judge. This type of motion will ensure that the process is as quick as possible,
In the event that the judge decides to allow an urgent motion, they must make a ruling based solely on the information that you provide the courts.
Often, in emergency custody situations, the information you provide may not include a wide range of hard evidence. Instead, it might primarily be based on your firsthand knowledge and experiences. This is why you should provide specific examples and as much information as possible in your request.
The courts require you to give a detailed explanation as to why an urgent motion is necessary. You will also be expected to explain why you believe there may be consequences if the matter is not addressed immediately. And, you may need to give examples of what these consequences might include.
Step Two: Complete Necessary Court Documents
Some of the documents that you may need to file to establish and request urgency include the following:
1. Situation involving family members;
2. Situation involving someone other than family members.
The Alberta Government has more information including a link posted here.
(REMEMBER IF YOU ARE IN IMMEDIATE DANGER CALL 9-1-1 FIRST)
These are forms where you list the orders that you are asking the courts to make.
On your application, you will list information about yourself, your situation, and the facts and reasoning that support your request. You will need to check off the orders that you are asking the judge to make, and explain your basis for each one separately. You might also need to explain your history and your relationship with the other party and the child involved.
An affidavit is a sworn, written statement that you provide the courts. It should include why you are requesting an urgent motion, and it should list the evidence in the case. It is vital that you are certain that the information included in your affidavit is accurate and that you are sincere when you fill out this form.
In addition to the above documents, there may be others that your case requires to fill out and return to the courts when you submit your information. These may include child support forms and affidavits from others offering evidence for your motion.
Step Three: File Motion
To file an urgent motion, after completing the proper documentation, you will submit all of your documents to the court. The court will let you know if any further information is required for consideration of the motion by the judge.
Step Four: The Judge Makes a Decision Based on Your Motion
A judge will review your petition on the day that it is filed in the courts. Because judges must sometimes hear many cases throughout the course of a day, you may have to wait until they are available to review your request.
Once the judge reviews your request and all pertinent documentation, they will make a decision. If they feel that the motion is justified, they will issue an order.
If an order is issued, a representative of the court will supply you with a copy.
Step Five: Attend Court Hearing
An urgent petition is how to get emergency custody, but it is usually only a temporary order.
There will be a hearing set, usually within two weeks, so the judge can hear the other party's response and make a decision beyond this time period.
You must attend the hearing and bring all necessary documents. You may also have witnesses that need to attend the court hearing and offer testimonial evidence for your case.
If you did not have legal representation that advised you on how to get a restraining order when you filed your original motion, you might want to obtain a lawyer prior to your court hearing.
The process is not always easy. A lawyer can provide support and help you feel confident about your case prior to your hearing.
Obtaining Representation for Your Case
When you initially file your motion with the courts, you may not have a lawyer who to advise you how to get emergency custody. But, when you attend the hearing, it's best if you can hire a lawyer to represent you.
A lawyer will help you decide how you would proceed to gain long-term custody.
They can subpoena witnesses, determine critical information that needs to be presented, and they can tell you what facts should be included in your testimony. They can also question the other party and request additional information from them that may help the judge make a decision.
If it is determined that the child is no longer at risk for immediate danger, your lawyer can offer mediation to help you and the other party make an agreement that is in the best interest of the child.
Your lawyer may also be able to have child support established, and if necessary, file to have the funds garnished so that you receive payments to help care for the child's needs.
If you decide not to obtain representation, you may not know how to get emergency custody extended or what is required on the day of the hearing. You might not have access to forms, witnesses, or an explanation of the laws that pertain to your case.
Without proper representation, you run a greater risk of the hearing resulting in an unfavorable outcome. Not only that, if the other party has representation, they could even request that custody be reversed.
Get Legal Help for Your Child Custody Case
Do you need a lawyer that knows how to get a restraining order to help you with your case?
If your child is in danger and you are ready to proceed with emergency custody, do not take any chances. Our team of skilled legal professionals will help you get the results that you're looking for. And, they will take any measures necessary to ensure that your child is safe from potential harm.
You don't have to go through a long and exhausting custody battle on your own, You can contact Warren T. Smith of our office at 587-410-0604 who has extensive experience dealing with EPOs (Emergency Protection Orders).
Contact us today to find out how to get a restraining order, guardianship or custody as quickly as possible.