Family law protection orders in BC can be made on application by an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative. The person seeking a family law protection order is not required to bring a separate claim for divorce or support. Protection orders can be made without notice to the named person and the applicant will have to satisfy the judge that there is a real risk if notice to the other party is required before their application is heard.
The court must consider relevant risk factors when hearing an application for protection orders. Family Law protection orders generally expire within a year unless the court fixes the term. While an effective tool, family law protection orders are restrictive and can create stigma or prejudice to the named party that is hard to overcome later in the family law proceeding.
Who Can Apply for A Family Law Protection Order?
Family law protection orders are available to “at-risk family members”. An at-risk family member is a person whose safety and security are at risk or likely at risk from family violence carried out by a family member. For example, using Jane Doe as a reference, the following would be Jane Doe’s family members within the definition of the Family Law Act, SBC 2011, c 25:
- (a) Jane Doe’s spouse or former spouse,
- (b) a person with whom Jane Doe is living, or has lived, in a marriage-like relationship,
- (c) a parent or guardian of Jane Doe’s child,
- (d) a person who lives with and is related to Jane Doe, or
- (e) a person who lives with and is related to a person referred to in any of paragraphs (a) to (c), or
- (f) Jane Doe’s child, or
- (g) A child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e).
A person referred to in any of paragraphs (a) to (g) can apply to obtain a protection order against Jane Doe if they believe that they are subject to family violence perpetrated by her.
What Qualifies As Family Violence?
The finding of family violence does not require the finding of an intent to harm a family member. The meaning of “family violence” encompasses physical abuse, sexual abuse, attempts of physical or sexual abuse, and psychological or emotional abuse (including threats and financial control). Where a child is involved, family violence includes the child’s direct and indirect exposure to these factors.
Common Restrictions Provided by Protection Orders
It is common to see “no-go” and “no-contact” clauses in family law protection orders. The named person can be ordered to stay away from the at-risk family member’s home, workplace, school, or other places where the at-risk family member frequents. Additionally, the named person can be ordered to have no direct or indirect contact with the at-risk family members. Depending on the circumstances, there can also be terms requiring the named person not to follow the at-risk family members or not to possess weapons or other specified objects.
Incidental Consequences of Protection Orders
Impact on Parenting
When children are named persons needing protection, protection orders will have an immediate and sometimes long-term impact on the parenting regime. It is possible that the other party lied about the danger or risk they are facing from you. If a judge makes a protection order, it could prevent you from seeing your child, even if you were allowed to under a previously made parenting order. In these circumstances, you should consider setting aside or varying the terms of the protection order. You will need to convince the judge that the protection orders are either unwarranted or unreasonably interfering with your ability to parent your children.
Impact on Home Occupancy
If a named person is ordered to stay away from an at-risk family member’s home and the person in need of protection occupies the family home, the named person effectively becomes an “ouster”. Unless the protection order has been terminated or varied, the named person must find alternative accommodation or shelter.