Protection Orders
Table of Contents
What is a Protection Order?
Protection orders can be obtained under Part 9 of the Family Law Act. Protection orders, sometimes referred to by the layperson as a restraining order, are legal measures that aim to protect victims of family violence.
The purpose of a protection order is to prevent future family violence against vulnerable family members in volatile situations.
Protecting individuals from family violence is a critical objective of the Family Law Act, and an entire part of the statute is dedicated to it.
Protection orders can restrict the abusive person’s behaviour, such as prohibiting contact or requiring them to stay away from the victim.
It is important to keep in mind that it is an extraordinary order. It is only enforceable under the Criminal Code. Breaching a protection order can lead to criminal charges under section 127 of the Criminal Code.
A protection order also suspends the terms of any existing orders that are in conflict with it, which can upset the status quo established by existing court orders with respect to parenting time and other matters.
For example, if there is an existing order which provides mom with parenting time with her child and dad obtains a protection order which protects both dad and the child, then the parenting time order will be suspended.
What is "Family Violence"?
Under the Family Law Act, the term “family violence” has a very broad meaning.
Family violence primarily involves situations where an adult, whether a current or former intimate partner, uses psychological, physical, financial, or sexual means to exert control over the other person. This harmful behaviour follows patterns that can be verbal, physical, or sexual in nature.
Violence within intimate partnerships is intricate. Unlike violence between strangers, it often involves manipulation and control tactics.
Family Violence may include:
- Physical Abuse: Physically hurting a family member, like confinement or withholding basic necessities. However, reasonable force for self-defense isn’t considered family violence.
- Sexual Abuse: Any sexual harm inflicted upon a family member.
- Attempts at Abuse: Even trying to physically or sexually harm a family member counts.
- Psychological or Emotional Abuse: This includes non-physical harm, like intimidation, threats, coercion, stalking, and damaging property.
- Child Exposure: If a child witnesses family violence (directly or indirectly), it’s also considered family violence.
Powers of the Court
When dealing with family violence, section 183(3) of the Family Law Act, allows the court to make various orders in order to protect an at-risk family member.
Here’s what these orders might include:
Restraining Communication and Contact:
The court can prohibit a family member from:
- Directly or indirectly communicating with the at-risk family member or a specified person.
- Going near places the at-risk family member frequents (like their home, workplace, or school).
- Following the at-risk family member.
- Possessing weapons, firearms, or specified objects.
- Holding licenses or documents related to weapons or firearms.
Communication Limits:
The court can specify how the family member communicates with the at-risk family member.
Police Directions:
Police officers may be directed to:
- Remove the family member from the residence immediately or within a specified time.
- Accompany the family member or others to supervise the removal of personal belongings.
- Seize any prohibited items (like weapons).
Reporting Requirement:
The family member may need to report to the court or a designated person as specified.
Additional Terms and Conditions:
The court can set any necessary terms to protect the safety of the at-risk family member or implement the order.
Factors Considered By Court When Making Protection Orders
When deciding whether to issue a protection order, the court is required to consider several risk factors set out in section 184(1) of the Family Law Act.
Here’s what the court must consider:
History of Family Violence:
They check if the family member (against whom the order is sought) has a history of violence within the family.
Repetitive or Escalating Violence:
They assess whether the family violence is happening repeatedly or getting worse.
Patterns of Coercive Behavior:
Psychological or emotional abuse patterns that control or manipulate the at-risk family member are taken into account.
Relationship Status:
The current relationship status (including recent separation) between the family members matters.
Risk Factors for Violence:
Any circumstances that increase the risk of violence by the family member (like substance abuse, mental health issues, access to weapons, or past violence) are considered.
At-Risk Family Member’s Perception:
They listen to how the at-risk family member perceives their own safety and security.
Vulnerability Factors:
Vulnerability factors (like pregnancy, age, health, or economic dependence) are also taken into account.
Ultimately, the court must be satisfied that the applicant family member is an at-risk family member and family violence is likely to occur before the court will grant a protection order.
Setting Aside a Protection Order
There are three different grounds for setting aside a protection order, depending on how the protection order was obtained.
The first ground is where the protection order was obtained with notice and both sides were heard by the court. To set aside the protection order, the person asking for the protection order to be set aside must prove that there has been a material change of circumstance since the protection order was granted such that family violence is not likely to occur against the person who obtained the protection order.
The second and third grounds for setting aside a protection order apply to circumstances where the protection order was granted on an without-notice basis. That is, where the court only heard one side of the story.
If the protection order was obtained on a without notice basis, it can be set aside if the applicant failed to provide full and frank disclosure to the court when they applied for the protection order. If they misled the court or failed to provide relevant information, then the protection order can be set aside.
If a protection order was obtained without notice, a new hearing is required if an application to terminate it is brought before a different judge, other than the judge who made the protection order. Ideally, the same judge who granted the protection order should hear the application to set aside the protection order.
However, due to the shortage of judges and the urgent nature of protection order applications, it is often impractical for the termination application to be heard by the same judge who issued the order.
Without notice protection order applications tend to cause a lot of mischief. In general, courts do not make orders without notice to the person against whom the order is made without good reason.
As a general rule. an application without notice should be rarely made and only in emergencies or special circumstances. To proceed without notice, there must be evidence that the delay associated with notice would result in harm or that the other party might do harm if notified.
The British Columbia Court of Appeal in Kapoor v. Makkar, 2020 BCCA 223 at paragraph 11 said that:
“A “without notice” order is an extraordinary, powerful, interlocutory remedy which is recognized as having the potential to inflame a dispute between parties in fraught situations or to produce potential injustice when made on incomplete submissions that generate a wrong understanding of the circumstances.
To protect against avoidable damage to the litigants or the litigation process, while retaining this valuable judicial response for emergency situations, procedural safeguards (which I do not see in this case) are usually employed.
These may include a true interim term establishing the duration of the order, or a term providing a return date by which an opportunity is given to the other party to be heard without their filing a fresh application, and a term requiring service, by a time certain, of all materials that were before the judge on the application, along with a copy of the entered order.
On occasion even short notice, or even informal notice, will serve to alleviate some of the offence that may be taken from the presentation to a party of an order obtained against them without notice.
There is, of course, a time and place for without notice orders, but I respectfully suggest that to the extent possible when a without notice order must be made, these time honoured safeguards should be employed vigorously.”
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