Family Law Protection Orders

Content Warning: The following article includes references to family violence which may be uncomfortable or upsetting for some readers. If you are in need of support, you can find several resources here. If you’re in immediate danger, call 911.

 If you have experienced family violence or believe there is a risk of family violence, you can apply for a family law protection order. The protection order can be put in place to protect you or any other family member who is at risk. The following article discusses in more detail who can get a family law protection order, in what circumstances the family law protection order will be granted, and how the family law protection order will function to protect you from family violence.

 Who Can Get a Family Law Protection Order?

 Section 183 of the Family Law Act provides that any of the following parties can initiate an application for a family law protection order:

 ·         A family member who is personally at risk of family violence;

·         Another family member, on behalf of the at-risk family member; or

·         The Court, on its own initiative.

 Importantly, an application for a protection order need not be made in conjunction with any other proceeding or claim under the Family Law Act. This means that, if you are experiencing domestic violence, you can apply for a protection order without having initiated any sort of claim against your spouse, even if you are still living with and/or married to them.

 If you are still living with your spouse or are otherwise concerned about your safety when they find out about the application, you can apply for a family law protection order without notice. More information about applying for a family law protection order without notice can be found later on in this article.

 What is Family Violence and Who is a Family Member?

 The Family Law Act says that “family violence” includes, with or without an intent to harm a family member,

(a)    physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b)   sexual abuse of a family member,

(c)    attempts to physically or sexually abuse a family member,

(d)   psychological or emotional abuse of a family member, including

(i)                  intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii)                unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,

(iii)              stalking or following of the family member, and

(iv)              intentional damage to property, and

(e)   in the case of a child, direct or indirect exposure to family violence;

 The Family Law Act defines a person’s “family member” as being:

(a)    the person's spouse or former spouse,

(b)   a person with whom the person is living, or has lived, in a marriage-like relationship,

(c)    a parent or guardian of the person's child,

(d)   a person who lives with, and is related to,

(i)                  the person, or

(ii)                a person referred to in any of paragraphs (a) to (c), or

(e)   the person's child,

and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e).

 Granting Family Law Protection Orders

 A court may make a protection order if it determines that family violence is likely to occur and the family member being protected is themselves at-risk of such family violence. In determining whether to grant the protection order, the court must consider several “risk factors” set out by section 184 of the Family Law Act:

(a)    any history of family violence by the family member against whom the order is to be made;

(b)   whether any family violence is repetitive or escalating;

(c)    whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;

(d)   the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e)   any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f)     the at-risk family member's perception of risks to the at-risk family member's own safety and security;

(g)    any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

 If there is a child in the family, the court must also consider, in addition to the above, whether the child may be exposed to family violence if a protection order is not made and whether an order protecting the child should also be made if the person against whom the order is sought is the child’s parent or guardian.

 You can apply for a protection order in either Provincial Court or Supreme Court. Usually, you would apply through the Provincial Court, as it is free to apply for in that court and less complicated to navigate than the Supreme Court if you do not have a lawyer. You can apply for a protection order in Provincial Court even if you already have a file going through the Supreme Court.

 If you want to apply for a protection order, you may want to consider getting support from a lawyer who can help you navigate the process and ensure the court has all the information it needs to make a just decision.

 How Does a Family Law Protection Order Work?

 A protection order may include any terms or conditions the court considers necessary to protect the safety and security of the at-risk family member or ensure implementation of the order. This can include a provision restraining the family member subject to the protection order from:

·         directly or indirectly communicating with or contacting the at-risk family member or a specified person,

·         attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,

·         following the at-risk family member,

·         possessing a weapon, a firearm or a specified object, or

·         possessing a licence, registration certificate, authorization or other document relating to a weapon or firearm.

 A family law protection order can also place limits on the family member subject to the order in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact which is permitted.

 To ensure protection and enforcement, a family law protection order may also include directions to a police officer to:

·         remove the family member from the residence immediately or within a specified period of time,

·         accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or

·         seize from the family member any weapon, firearm or specified object, or licence, registration certificate, authorization or other document relating to a weapon or firearm.

 If the family member subject to the protection order does not obey the terms of the order, this is a criminal offence. You can call the police and the police will enforce the order, which may include them being charged and arrested.

 A protection order will last for one year, unless the court specifies another date on the order. Once a protection order expires, you may apply for another.

 Applying for a Protection Order Without Notice

 Usually, when you apply for a court order, you have to provide the other party with notice of your application. However, if you don’t want the other person to know in advance that you’re applying for a family law protection order, you may want to consider applying for a “without notice order”. Applying for a protection order without notice may be the right thing for you if providing them with notice would put you or another family member in more danger.

 If you need to get a protection order quickly, you can also ask the court registry staff to schedule an “urgent hearing”. This usually means a judge will hear your case and, if you are successful, grant a protection order that very day or the next day.

 If you want to learn more, please contact us for a consultation. Our knowledgeable and empathetic team is ready to help you navigate this difficult process.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.