For individuals experiencing family violence, a Protection Order can be a critical legal tool to help ensure their safety. But what exactly is a Protection Order, how is it granted, and what does the court consider when deciding whether to issue one?
What Is a Protection Order?
The Government of British Columbia defines a Protection Order as “a protection order is a court order made by a judge to help protect one person from another. (It) lists conditions for a named individual to follow that may require that individual to have no contact, or limited contact, with the person being protected or that person’s children and/or family. The conditions may include not going to the protected person’s home or workplace, no phone calls, emails, or letters, and no messages through a friend or relative…”
These conditions may include:
- No contact (or limited contact) with the protected person or their children
- No communication via phone, email, letters, or third parties
- Staying away from the protected person’s home, work, school, or other specified locations
When Will the Court Grant a Protection Order?
Under Section 183(2) of the Family Law Act, a judge may grant a Protection Order if there is a likelihood that family violence will be committed against an at-risk family member.
To make this determination, the court must assess several risk factors under Section 184(1) of the Family Law Act, including:
- 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, or is evidence of, 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 the at-risk family member’s 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.
Section 16(4) of the Divorce Act outlines additional considerations for the court. These include:
- Nature, seriousness and frequency of the family violence and when it occurred;
- Pattern of coercive and controlling behavior;
- Family violence is directed toward the child either directly or indirectly;
- Physical, emotional and psychological harm or risk of harm to the child;
- Any compromise to the safety of the child or other family member;
- Whether family violence causes the child or other family members to fear for their own safety or for that of another person;
- Any steps taken by the person engaging in family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
- Any other relevant factor.
How Long Does a Protection Order Last?
Protection Orders typically expire one year from the date they are issued, unless the court states otherwise.
Before the expiry date, either party can apply under Section 187 of the Family Law Act to:
- Shorten or extend the duration of the order
- Amend the terms of the order
- Terminate the order
What Happens if Someone Violates a Protection Order?
Breaching a Protection Order is a serious offence. Under Section 127 of the Criminal Code, a police officer who has reasonable and probable grounds to believe the order has been violated may arrest the individual. Consequences can include fines or imprisonment.
How Do You Apply for a Protection Order?
To apply for a Protection Order, the following documents are generally required:
- A Notice of Family Claim (if no existing file exists)
- A Notice of Application
- A Supporting Affidavit that sets out detailed facts showing why protection is needed
In urgent cases, you can apply without notice to the other party. However, it is crucial to provide full and frank disclosure of all material facts. Failing to do so may result in the order being overturned upon review.
