If you, or any of your Vancouver, Fort St John, Surrey or Kelowna family members have been subject to family violence call our team of highly qualified lawyers immediately to get the family protection order you need. Our family protection orders legal team has decades of experience protecting at risk family members from family law mental and physical abuse. The new BC Family Law Act makes it clear, coercive behaviours and threatening mentally and physically abusive actions will not be tolerated by the BC family courts. Call our family protection order legal team toll free across BC at 1 877 602 9900 or meet with our top family protection order lawyers.
As of March 18, 2013 BC’s Family Relations Act has been replaced by the Family Law Act. One of the important changes to our BC family law system is the replacement of Section 37 and 38 restraining orders, i.e. order restraining harassment and order prohibiting interference with child, with the new protection orders under part 9 of the Family Law Act.
According to Ministry of Justice, the new protection order scheme:
- broadens the range of family members who are eligible to apply for protection orders;
- clarifies the procedure to ensure protection orders are accessible, clear, and effective; and
- provides guidance on risk factors to promote the use of protection orders in appropriate and safety-related situations.
A protection order under the Family Law Act may:
- restrain a person from communicating or contacting the person who has been subject to family violence;
- restrain a person from attending certain places such as the workplace or the residence of the person who has been subject to family violence;
- prevent a person from following the person who has been subject to family violence;
- prevent a person from possessing a weapon or firearms or limit the mode of communication, etc.
The court may also direct a police officer to remove a person from a residence, to assist in removal of personal belongings, or seize weapons or firearms from a person.
Protection orders need not be in conjunction with any other claims under the Family Law Act and they can be applied for on stand-alone basis.
In this post, we will address who is eligible to apply for a protection order. The starting point of the analysis is the section 183(1) of the Family Law Act. Section 183(1) reads as follows:
183(1) An order under this section
(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative, and
Pursuant to this section any family member who is at risk or any person on behalf of that at risk family member can bring an application for protection order. The act does not define who can bring an application on behalf of an at-risk person or whether the consent of the at-risk person is required. The use of the word “on behalf of”, however, arguably creates an agency relationship and therefore the consent of the person would be required, at least implicitly. The Family Law Act, however, defines both at-risk family member and family member.
At-Risk Family Member
Section 182 defines the at-risk family member as follows:
“at-risk family member” means a person whose safety and security is or is likely at risk from family violence carried out by a family member;
Family violence is also a defined term under the Family Law Act.
“family violence” includes
(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 definition of family violence is very broad. It includes sexual, physical, psychological, and emotional abuse towards a family member. Psychological and emotional abuse in turn includes financial distress and threats including threats towards the other persons’ pets and property.
“family member”, with respect to a person, means
(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);
The definition of Family Member under the Act includes married couples, former spouses, i.e. divorced spouses, couples who are living together in a marriage-like relationship, couples who have previously lived together in a marriage-like relationship, related persons, a child, a parent or guardian of a child.
With respect to persons living together in a marriage-like relationship, unlike provisions that deal with support and division of property, the act does not require any duration for the relationship. Thus, even people who have been living together in a marriage-like relationship for a short period of time, i.e. less than 2 years, can apply for a protection order.
Additionally, the term family violence does not require that the family violence to occur during the relationship. Therefore, as long as a person is a family member and there is evidence of family violence, regardless of whether it occurred pre or post separation, that person can apply to the court for a protection order.
To be granted a protection order the court considers following factors:
(a) 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 his or her 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.
There is no limitation period to apply for a protection order; however, the applicant needs to satisfy the court that there is a risk of harm.
Breaches of a protection order will be a criminal offence and may be enforced under section 127 of the Criminal Code.
To summarize, under the new Family Law Act, any family member who has been or is likely to be subject to family violence by another family member or any person on behalf of that family member can bring an application to obtain a protection order. The Family Law Act broadens the range of family members who are eligible to apply for protection orders and the definition includes spouses, former spouse, persons who are living together in a marriage-like relationship, persons who have lived together in a marriage-like relationship, children, guardians of the children, and related persons. With respect to common law partners or former common law partners, it is sufficient to prove that the parties have lived together in a marriage-like relationship of any duration. If based on the evidence the court is satisfied that there is a risk of harm, the protection order will be granted. If the order does not specify a date then the protection order is valid for one year. Breaches of a protection order will be a criminal offence.
If you, any of your family members have been subject to family violence give us a call and our team of highly qualified lawyers will be pleased to assist you. Do not delay as the situation will likely worsen.