As experts in family law, sometimes our team at Westside is asked how the process works for getting a restraining order in British Columbia. There are two main ways to achieve this objective during a family law dispute:
Option 1 – You can apply for a Protection Order through British Columbia’s court system (either at a Provincial Court or the Supreme Court).
Option 2 – You can apply for a Peace Bond through British Columbia’s criminal courts.
While both options are administered through our court system, they function quite differently.
A protection order functions to protect you and your relatives from physical harm. If you feel you (or a member of your family) is at risk of “family violence” from an ex-spouse, BC’s Family Law Act grants you the ability to apply for a Protection Order. In legal terms, family violence can include the following:
- physical abuse, including forced confinement or deprivation of the necessities of life,
- sexual abuse,
- psychological or emotional abuse of a family member, including intimidation, harassment, coercion, threats, or demeaning remarks,
- in the case of a child, direct or indirect exposure to family violence, or
- litigation conduct amounting to a form of emotional abuse and harassment
The above is pertinent to Section 183 of the Family Law Act. It allows British Columbia courts to restrict communication and contact between family members. In practical terms, it will take the form of a restraining order, or an order banning the offending individual from possessing weapons.
Considerations for the Court
Courts in British Columbia will consider several factors before deciding to issue a Protection Order:
- Any history of family violence by the family member against whom the order is to be made;
- Whether any family violence is repetitive or escalating;
- Whether any psychological or emotional abuse constitutes a pattern of coercive and controlling behaviour directed at the at-risk family member;
- 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;
- 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;
- The at-risk family member’s perception of risks to his or her own safety and security;
- Any circumstance that may increase the at-risk family member’s vulnerability, including pregnancy, age, family circumstances, health or economic dependence.
Relevant Legal Precedent
In law, we typically have a precedent we can refer to for guidance. The area of restraining orders is no different. In Whitelock v. Whitelock, 2014 BCSC 1184, it was established that saying you are afraid of your ex is not enough to warrant a restraining order. Mrs. Whitelock had argued for a restraining order on the basis her former husband had repeatedly called her and her new partner on the phone. The court denied the request:
there is no evidence to support a protection order under the FLA and there is no evidence that Mrs. Whitelock’s safety and security is or is likely at risk from family violence by Mr. Whitelock. He may be gruff, but Mrs. Whitelock is not at risk of violence from him. A breach of a protection order is a criminal offence and should not be made on the facts of this case.
Once a Protection Order has been secured, it must be registered with the Protection Order Registry. This enables the police to quickly reference your Protection Order if any problems arise and immediately understand the threat.
In accordance with section 183(5) of BC’s Family Law Act, a Protection Order will expire after one year unless the courts declare otherwise. After this one-year term, you will need to re-apply if you still need protection.
A Peace Bond is a much simpler process that still provides protection from threats. Unlike a Protection Order, a Peace Bond can be taken out against anyone, not just an ex-partner. To secure a Peace Bond, an individual simply calls the police, explains why they feel under threat of violence, and ask for a Peace Bond. If police feel the threat is legitimate, a government lawyer will become involved and prepare an “Information,” which is a document that starts the court process.
Just like a Protection Order, Peace Bonds expire after one year and can be reapplied for if the threat is still present.
Find Out More
Westside Family Law can assist with any aspect of the restraining order process. Contact us and we’ll be happy to help!