The Protection Order: What is it and How Does it Work?
By Millad Ossudallah, Vancouver Family Lawyer
Individuals subject to family violence in a family law case often seek a Protection Order from the court. But what is a Protection Order, and under what circumstances do the Courts grant a Protection Order?
According to the BC Government definition: “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…"
Pursuant to section 183(2) of the Family Law Act, the Court may create a Protection Order if it is determined that family violence is likely to occur against an at-risk family member. In making the determination, the Court considers a number of risk factors pursuant to section 184(1) of Act:
- History of family violence;
- Family violence is repetitive or escalating;
- Psychological or emotional abuse;
- Current status of the relationship;
- Circumstances of the at risk family member if a Protection Order is made;
- The at-risk family member’s perception of risks to his or her own safety and security; and
- Any circumstances that may increase the at-risk family member’s vulnerability.
Furthermore, pursuant to section 16(4) of the Divorce Act, the Court considers additional factors relating to the impact of family violence:
- 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.
A Protection Order expires one year after the date it is made, unless the Court stipulates otherwise. In the lead-up to expiration, pursuant to section 187 of the Family Law Act, an application must be made before the end date of the Protection Order for shortening the term, extending the order, changing the order, or terminating the order.
Regarding enforcement, a police officer, having reasonable and probable grounds to believe that an individual has contravened a term of a Protection Order, may take action – disobeying a Protection Order is an offence under section 127 of the Criminal Code punishable by fine or imprisonment.
How does one apply for a Protection Order?
An Applicant will require a supporting Affidavit, Notice of Application, and a Notice of Family Claim to commence a court file number if one has not been initiated. An applicant may commence a without-notice application, however there must be full and frank disclosure of all material facts to ensure the order is not set aside by a judge upon a further review.
Family violence has been on the rise since the beginning of the COVID-19 pandemic. The Vancouver family lawyers at Crossroads Law are very experienced in family law Protection Orders, applying for them and defending against them. Call today for a free initial consultation.