18/01/2018 0 Comments
Do You Need a Protection Order?
A “Protection Order” is an Order made by a Judge in court under the Family Law Act that is meant to protect one person from another in a marital situation or marital like situation.
A Protection Order was previously known as a Restraining Order. Now Restraining Orders are intended to secure property by preventing a spouse from disposing of family property. A Peace Bond is a type of Protection Order that is ordered by the Judge in a criminal case.
What Conditions are in a Protection Order?Protection Orders can include a wide range of conditions for a person to follow. Common terms are that there is to be no contact or limited contact with the person(s) being protected. A judge can also require your spouse to report to court, instruct police to attend a residence to take away weapons or attend with you so you can remove your personal belongings from the residence.
When Should a Protection Order be Sought?
Part 9 of the Family Law Act empowers the court to make a Protection Order to protect “at-risk” family members from “family violence.” 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;
Family violence has been broadly interpreted by the courts. In J.C.P. v. J.B., for example, Judge Merrick determined that the non-payment of child support could constitute family violence in certain circumstances. In that case, he found that the failure to pay child support was designed to inflict psychological and emotional trauma to the mother and was therefore an act of family violence.
How to Get a Protection Order
An Applicant can apply in B.C. Provincial Court or B.C. Supreme Court. Before a Protection Order is granted, there will be a hearing in court. The level of court you choose to file your Protection Order in will depend on your unique circumstances. You should consult with Valerie before making this decision. Here are some considerations to keep in mind when selecting your court forum.
- The process in Provincial Court is simpler and less formal.
- There is no court fee associated with filinga Protection Order.
- You can apply for a family law ProtectionOrder on its own or at the same time as you apply for parenting or support Orders.
- Evidence in court is usually given inperson. You will have to explain your situation in open court.
- The process in Supreme Court is more formal.
- There is a court filing fee of about $200 or$80 if you already have a case filed in Supreme Court. These fees will have to be paid by you unless you get permission to waive the fees.
- You can apply for a family law ProtectionOrder on its own or at the same time as you apply for parenting, support, or property orders.
- Evidence in court is usually given by as worn statement called an Affidavit. If you have a lawyer, your lawyer will speak to the Judge on your behalf.
Obtaining an Order with NoticeIf you feel it is not safe to notify your spouse before you apply for the Protection Order, then you may be permitted to obtain the Protection Order without notifying your spouse in advance. If the judge makes a Protection Order, the Protyection Order will be immediately served to your spouse. Your spouse will then have an opportunity to go to Court and ask that the Protection order be cancelled or changed. If your partner can demonstrate that there is no a risk of family violence, the Protection Order will likely be cancelled.
Protection Order RegistryAfter a Judge signs a Protection Order, it is entered in the Protection Order Registry. This is a confidential computer database that contains all Protection Orders (including peace bonds) in BC. At any time, you can make sure your family law Protection Order is registered in the database by calling VictimLink BC (toll-free) at 1-800-563-0808.
What Should You Do Once You Have an Order?Always keep a copy of the Protection Order with you in case you need to show it to police. If the Protection Order includes your children, also give a copy to anyone who takes care of them when they are not with you (e.g., their teachers, child care providers, coaches, or other instructors). Instruct these individuals to call the police if your partner does not follow the conditions in the Order.
How Long Does it Last?
A Protection Order will last until the end date that the Judge puts on the Order. If the Judge does not specify an end date, it will last one year.
What To Do if the Protection Order is not ObeyedCall 911 right away if your former spouse does not obey the Protection Order. Protection Orders can be enforced by local police or RCMP anywhere in British Columbia. Disobeying a Protection Order is a criminal offence. Serious consequences can be faced upon conviction for a breach of the Protection Order ranging from a fine to imprisonment.
Other SupportsIf the person named in your order is in custody or serving a sentence in a provincial jail, you can arrange to have a Victim Safety Unit caseworker contact you when your former spouse is about to bereleased. You need to fill out a Victim Safety Unit Notification Application Form, available at your nearest victim services office or online at www.pssg.gov.bc.ca/victimservices/victim-safety. You can also call the Victim Safety Unit directly and apply over the phone at 1-877-315-8822. Moreinformation is available from the Ministry of Justice, Victim Services & Crime Prevention Division, including: For Your Protection, Peace Bonds and Family Law Protection Orders.
Contact Valerie M. Little Law Corporation for Assistance with Family Law in Burnaby, BCOur family lawyer in Burnaby can assist you with your specific situation, including obtaining a Protection Order. She has nearly 30 years of experience in family law, including family violence matters. Call her today at 604-526-3333 to get help in protecting yourself and your family.