Resolution of family law matters typically engenders determination of issues such as division of family property, entitlement to spousal and child support and disposition of the marital home. Less commonly, family legal matters may involve issues of family violence. Unfortunately, the law must protect those who fear they may be in danger from a family member or due to a family dispute. Matters of family violence that involve allegations of danger to children are particularly fraught, as children are largely unable to protect themselves and must, therefore, rely upon the adults in their lives to seek appropriate measures to ensure their safety.
In this blog, we explore how one may seek a protection order for a child, including the criteria the court will consider in assessing whether such an order should be granted and how one may seek to remove a protection order once it has been issued.
Party Seeks to Set Aside Protection Order
In a recent decision of the Provincial Court of British Columbia, the court considered whether to revoke a protection order that had previously been issued in respect of the father and child to protect them from the mother—specifically, the father and mother, who share a 9-year-old child, separated in March 2024. On the date of their separation, the father obtained a protection order against the mother that prohibited her from contacting either himself or their child outside of supervised parenting time. The order, which was set to expire on March 21, 2025, was obtained because the mother posed a risk of family violence to both the father and the child. The mother applied to set aside the protection order because she did not pose a risk of family violence to either her son or partner.
Protection Orders for Family Violence Situations
The purpose of protection orders under the Family Law Act is “to prevent family violence against vulnerable individuals in volatile situations.” Any person who fears they may be at risk of harm, whether psychological, emotional or physical, at the hands of a family member may apply under section 183 of the Family Law Act (“FLA”) for a protection order. In deciding whether to grant such an order, the courts will consider the criteria listed in section 184, as follows:
“(a) any 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 the at-risk family member’s 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.”
Moreover, suppose the order is sought with respect to a child. In that case, the courts are bound by section 185 of the FLA to also take into account “whether the child may be exposed to family violence if an order under this Part is not made, and whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child’s parent or guardian.”
The courts consider granting protection orders very carefully, as “granting a protection order, especially without notice, is not a routine or perfunctory matter. A protection order is an extraordinary order; it is only enforceable under the Criminal Code, and it suspends the terms of any existing orders that conflict with it, which can upset the status quo established by existing court orders concerning parenting time and other matters”. In particular, in protection orders related to family violence, the courts will consider whether the granting of a protection order would disrupt a child’s access to one of their parents or guardians with whom they are accustomed to spending significant amounts of time.
Protection Orders Without Notice
Generally speaking, the courts of BC have determined that it is inappropriate to issue an order of protection “without notice to the person against whom the order is made without good reason … an application without notice should be ‘rarely made’ and only in ‘emergencies or special circumstances.’” If a person wishes to obtain a protection order without notice to the person against whom the order applies, then “there must be evidence that the delay associated with notice would result in harm or that the other party might do harm if notified.”
In particular, the courts have noted that issuing a protection order without notice may exacerbate an existing dispute between parties, and as such, the court should “consider alternatives if possible.”
The Test for Granting a Protection Order
The first step in considering a request for a protection order under section 183 of the FLA involves determining whether the parties involved qualify as “family members” within the definition provided under section 1 of the FLA. People will be considered to be family members if they satisfy one of the categories provided thereunder, “which include current or former spouses and parent/child.”
To grant the order sought, the court must determine that the person who applies for the protection order is an “at-risk family member” as that term is defined in section 182 of the FLA, which essentially means that the court is satisfied that the applicant’s “safety and security is or is likely at risk from family violence carried out by the respondent.” The term “family violence” has been defined under section 1 of the FLA to include physical, psychological, emotional or sexual abuse, and when it involves children, also includes direct or indirect exposure to family violence (i.e., a child witnessing one parent assault or berate the other parent in the child’s presence).
Setting Aside a Protection Order
Once a protection order has been granted by the criteria delineated above, it remains in place until the stated expiration date unless the person against whom the order is registered applies to have it set aside. As the legislation does not provide a mechanism for how to go about having a protection order removed or set aside, the courts have, over the years, developed two tests to be applied in such circumstances, depending upon the situation at hand:
“(a) whether there has been a material change of circumstance, such that family violence is not likely to occur against the person who obtained the order; or
(b) if the order was obtained without notice, whether the applicant failed to provide full and accurate disclosure.”
Application of the Legal Principles to the Facts of This Case
In the case referenced herein, the father had obtained the protection order against the mother on his and their child’s behalf on the basis that the mother had physically beaten him on at least one occasion and that she regularly engaged in emotional, verbal and psychological abuse of him in front of their child. The mother was also alleged to have grabbed roughly grabbed the child on one occasion, causing him to bleed.
The court noted that “past behaviour is an important predictor of future behaviour, and even a single incident of physical violence can be sufficient to conclude that family violence is likely in the future”; however, it did not find such risk to be present in this case. Given that there was only one incident of physical violence against each of the father and the child during the parties’ 12-year relationship, and those incidents occurred during the breakdown of the relationship. At the same time, matters were fraught and emotions high, and particularly considering that the parties no longer lived together, the court was satisfied that there was a low risk of the mother ever abusing either the father or the child again. As stated by the court, “she is under the microscope in these proceedings and knows that the Court can severely limit her contact with [the child] if new concerns arise. I would be surprised if [mother] laid a hand on [child] in the future.”
Given these conclusions and the fact that in the 2.5 months since the order was issued, the parties had separated, sold the family home and maintained distance from one another, the court was satisfied that “family violence in the form of psychological or emotional abuse” was unlikely. It granted the mother’s application to remove the protection order.
Vancouver Family Lawyers Providing Advice on Family Violence Issues
If you are involved in a family violence situation, then you are in need of competent, knowledgeable legal assistance to ensure your safety and that of your loved ones. Fortunately, the friendly, capable family lawyers at Meridian Law Group have the expertise to handle your claim compassionately and adeptly and ensure that you are protected and your rights are championed throughout the challenging legal process.
To schedule a confidential consultation, contact Meridian Law Group online or by telephone at (604) 687-2277.
