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Setting Aside a Without Notice Family Law Protection Order BC

An image of a protection order.


Family violence, abuse, and harassment are taken very seriously by the BC courts. A person

who fears violence from a family member, such as a spouse or common law partner, may be

able to get a protection order in family court. A family law protection order can be obtained to

protect the person who applies for it (the “protected party”) and/or their children.


What is a family law protection order?


Protection orders set out terms that restrict direct or indirect contact and communication with

the protected party and may also restrict where the person named in the order is allowed to

go. For example, they may not attend at the protected party’s home or place of work; they

may not attend at the children’s school, etc. These are powerful orders. They can limit a

person’s ability to see their spouse, spend time with their children, or even be present in their

own home.


Inappropriately obtained family law restraining order


In many situations, protection orders are necessary to protect an at-risk person. In other

situations, however, a party to a family law dispute may misuse the protection order process,

misguidedly attempting to gain an advantage in their family law dispute often in relation to

parenting time by convincing the court that there is a risk of family violence when none exists.

In today’s article, we’ll have a closer look at getting a family law protection order without

notice and how to set aside a without notice protection order.


Family law protective order BC application without notice


We have previously discussed how to apply for a family law protection order and the

differences between a family law restraining order under the Family Law Act and a peace bond

under Canada’s Criminal Code. In that earlier discussion, we mentioned situations where it may

be possible to get a family law protection order without notice previously known as an “ex

parte” order.


The usual rule is that fairness requires both parties have a chance to be heard by the court. So,

if one party wants to apply to the court for a protection order, the usual process is that they

must give at least 7 days notice to the other party. Notice is given by personally serving the

application documents on the other party.


It is unusual for a judge to grant an order without having heard both sides but under some

circumstances, an application for a protection order can be brought without notice to the other

party. To proceed without notice, the person applying for the order has to satisfy the court that

there is a real risk of danger, imminent harm or serious consequence if the required notice was

given before the protection order is made.


Setting aside an ex parte family law protection order


Once a without notice protection order is made by a judge, the order is entered, and

arrangements are made by the court to have the order served on the person to be bound by

the order. If the person served with the without notice protection order does not believe the

order is justified, they can apply to the court to terminate it or have set it aside.

Before we talk about the process for setting aside a without notice protection order, a warning

is necessary. If the person named in the order does not think the order is justified even if that

person knows the other party outright lied to the court to get the order, they should not ignore

its terms. It is a criminal offence if the person named in the protection order breaches the

terms of the order. A person should not simply ignore a restraining order because they do not

agree with it or think it was improperly obtained.


Instead, the person served with a without notice protection order should use the court process

to terminate or set aside the order. The process for doing so is as follows:

1. Complete and file an Application About a Protection Order, filling out Schedule 2 to

change the order or Schedule 3 to cancel it. The court registry will provide a date for

the application to be heard.

2. Properly serve the protected party by a professional process server with a filed copy of

the application along with any documents such as supporting affidavits.

The other party is usually entitled to at least seven days notice of the application before the

court date. However, it may be possible to have the application to terminate or set aside the

order heard with less than seven days notice if the matter is urgent.


On hearing the application, the judge must decide whether the legal requirements for a

protection order were met. Depending on the complexity of the facts, the judge may be able to

make that determination quickly based on affidavit evidence or brief testimony in court. If the

matter is more complicated or more evidence is needed to make the determination as to

whether the without notice order was warranted, the judge will refer the matter to be set

down for a hearing. The judge may make an interim order that stays in place temporarily until

the hearing takes place.


If the judge decides that the without notice protection order was unnecessary or improperly

obtained, the judge will set aside, terminate or amend the order and can penalize the other

party by ordering them to pay legal costs.


Trusted advice from our family law firm


New Westminster law firm Valerie M. Little Law Corporation provides calm and professional

support during very stressful circumstances. We have extensive experience in obtaining and

setting aside BC family law protection orders.

Without notice protection orders are complicated and require clear and compelling evidence. It

is strongly recommended that you get legal advice from a skilled family lawyer before applying

for a protective order or applying to set one aside.


Valerie M. Little Law Corporation is a family law firm that is centrally located in New

Westminster and serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port

Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey,

Cloverdale, Delta, and Langley. We encourage you to contact our family law firm today by email or

telephone at 604-526-3333 if you need guidance and confidential legal advice regarding any protection

orders made against you. .


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