Our top rated* Surrey protection order lawyers make it a priority to ensure our clients and their children and other family members are kept safe in stressful and volatile Surrey family law disputes. Our Surrey Protection Order Lawyers are often asked what the test is to obtain a Surrey family protection order. In today’s blog our skilled Surrey protection order lawyers will first explain set out the legislation under our Family Law Act.
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Surrey Protection Order Lawyers Explain Legislation To Protect Persons
Our Surrey protection order lawyers know that under the s. 183 of the Family Law Act (FLA), the court may grant an order for the protection of persons. The court will grant protection orders when there is a finding that family violence is likely to occur and that a family member is at risk by another family member. A “family member” and “family Violence” is defined as the following under the FLA:
“family member” means
(a) your spouse or former spouse,
(b) a person you are living with, or have lived with in a marriage-like relationship,
(c) the parent or guardian of your child,
(d) someone that lives with you and is related either:
(i) to you, or
(ii) to the person referred to in paragraphs (a) to (c)
(e) your child,
and includes a child that is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (e);
What Is Family Violence?
As our Surrey protection order lawyers explain to our clients, the definition of “family member” is not limited to parties to the litigation and a spouse can seek an order protecting them from a family member that is not the opposing spouse in the litigation. For example, a party could seek protection from an adult child who sided with one parent in the litigation and was threatening the other parent.
“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;
Pursuant to s. 182 of the FLA, an at risk family member is a family member whose safety and security is or is likely at risk from family violence carried out by a family member.
What Factors Do Our Surrey Protection Order Lawyers Argue In Court To Get An Order?
As set out in s. 184 of the FLA, in considering whether to grant a protection order the court will consider the following factors:
- History of family violence;
- Repetitive or escalating family violence;
- Evidence of a pattern of coercive & controlling behaviour;
- Current status of the relationship between the at risk family member and the family member against whom the order is to be made;
- Circumstance that may increase the risk of family violence (ie. substance abuse, employment or financial problems, mental health problems, access to weapons, or a history of violence);
- The at-risk family member’s perception of her own safety and security;
- Circumstance increasing the at-risk family member’s vulnerability (ie. pregnancy, age, family circumstances, health or economic dependence);
Recent Case Sets Out The Test For Our Surrey Protection Order Lawyers
Our Surrey protection order lawyers explain that in the BC Supreme Court decision in Dawson v. Dawson, 2014 BCSC 44 the court held that a single act of family violence may be sufficient to prove a risk of future violence when the single act is extremely serious and the gravity of harm of a potential future act may be just as extreme, in this case potentially lethal:
[43] I reach the foregoing conclusion for two broad reasons. The first involves the serious and unprovoked nature of the November 2007 assault. The second relates to Mr. D’s conduct since the assault and how that conduct relates to his mental health. It was for these two reasons that I imposed the restraining order I did in July 2010.
[44] The fact that there has been an act of physical family violence, even a single act of physical family violence, may provide a sufficient basis to conclude that family violence is likely to occur in the future. Although the passage of time may serve to reduce the probative force of such evidence, to the extent the circumstances giving rise to the earlier act of violence remain at large, the predictive quality of that earlier act may not be diminished with the passage of time. Moreover, it seems to me that when assessing the “likely” threshold set out in s. 183(2)(a) regard should be had to the gravity of the harm that might follow from an act of physical family violence.
[45] Dealing with the latter point first, the earlier act of violence in this case was extremely serious; indeed, it was potentially lethal. Given the protective purpose of orders under Part 9 of the Family Law Act, it is reasonable in my view to apply what might be termed a sliding scale to the threshold. The potential for very serious acts of violence is sufficient to engage the provisions of the Act, even if those acts of violence are, in absolute terms, not particularly likely.
Is A Single Incident Always Enough?
Nonetheless in W. (L.I.) v. W. (T.R.), 2014 BCSC 1748 the court declined to make a protection order even though a single act of family violence had occurred. The reason the court did this was because the incident was out of character for the offender and he had taken meaningful steps to ensure that his behaviour was not repeated.
[229] The claimant seeks a protection order under s. 183 of the FLA. As I understand it, the application is made on the basis the respondent’s regrettable behaviour over the 2013 Thanksgiving weekend. There is no other evidence before me that would justify such an order.
[230] As serious as the respondent’s behaviour was on that occasion, it was also out of character. In addition, the respondent has taken meaningful steps and, by virtue of the terms attaching to the s. 810 recognizance order, will continue to take meaningful steps to ensure that the behaviour is not repeated. On the evidence before me, I am not satisfied that family violence is likely to occur in the future or that the claimant is an “at-risk family member”. The application is, therefore, dismissed.
Our Surrey protection order lawyers act for spouse’s in need of protection and those who need help to deal with anger management issues. Getting help for both spouses early on is critical to ensuring matters can be resolved safely and that conflict that can harm spouses and their children is minimized.
If there are any of the above stated circumstances of family violence in your family dispute, do not wait another minute to phone our skilled and decisive Surrey Protection Order Lawyers today at 1 877 602 9900. We can help you obtain a protection order right away to ensure the safety of you and your children.
