Protection Orders – what the Family Law Act says and how judges have interpreted it

Posted to: 
Law
02/02/2016

A person who fears violence from a family member may be able to get a protection order in family court.

Section 183(2) of the BC Family Law Act says:

“A court may make an order against a family member for the protection of another family member if the court determines that
a. family violence is likely to occur, and
b. the other family member is an at-risk family member.”


But section 183(2) needs some explanation. On one hand it casts a wider net than you might think. “Family violence” is not limited to physical violence - the Family Law Act defines it more widely, to include emotional or psychological abuse. On the other hand, section 183(2) does not cover every possible family member. The relationship between the “family members” must come within a list set out in the Family Law Act. As a result, protection orders are not necessarily available against every member of a family.

This article answers some basic questions about Family Law Act protection orders. For more information, talk to a lawyer and read the information available through Clicklaw.

In this article,

“the applicant” means the person asking for a protection order
“the respondent” means the family member they are seeking protection from
“the Act” means the Family Law Act. Footnotes refer to the relevant sections of the Act.

Who can apply for a Family Law Act protection order?

An application for a protection order can be made 1

  • by an at-risk family member
  • by someone on behalf of an at-risk family member
  • on the judge’s own initiative

The application can be made without notice to the respondent 2 . However, this is an exception to the usual rule that both parties must have a chance to be heard by a judge before an order is made affecting them. Therefore, if the applicant is seeking an order without giving the respondent a copy of the application and the date it will be heard in court, the applicant must show that the matter is urgent or that special circumstances exist. Special circumstances would include a real risk of harm to the applicant, a child, or someone else if the applicant were required to give the respondent the usual notice.

However, an order made without notice may be changed, terminated, or set aside 3 at the request of the respondent, particularly if it is shown the applicant was not truthful or left out important information. Most types of Family Law Act orders may also be changed or terminated if circumstances change. 4

From whom can you be protected by a Family Law Act protection order?

You must be seeking protection from a “family member” 5 who is either:

  • your spouse or former spouse
  • someone with whom you are living, or have lived, in a marriage-like relationship
  • your child’s parent or guardian
  • someone who lives with and is related to you
  • someone who lives with and is related to your spouse or former spouse
  • someone who lives with and is related to a person with whom you are living, or have lived in a marriage-like relationship
  • someone who lives with and is related to the parent or guardian of your child
  • your child 6 , provided that the child is under the age of 19, or
  • a child under 19 who is living with, or whose parent or guardian is, one of the family members listed here

If the person you want protection from is not one of the listed “family members”, you will not meet the Act’s definition of an “at-risk family member” and you cannot get a protection order under section 183.

However, a person who fears violence may be able to get another type of protection order under the Criminal Code 7 and should discuss their situation with police.

To see how judges have decided whether someone comes within the definition of “family member”, it is helpful to read decisions written on this issue, for example:

J.Z. v. L.H.C. 2015 BCSC 97
M.W.M. v. J.D.K. 2015 BCPC 315
J.K. v G.K. 2015 BCPC 117
K.L.L. v. D.J. 2014 BCPC 85

How does the Family Law Act define “family violence” 8?

Section 1 says “family violence” includes:

  • 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

  • sexual abuse of a family member
  • attempts to physically or sexually abuse a family member
  • psychological or emotional abuse of a family member, including
    • intimidation
    • harassment
    • coercion
    • threats including threats respecting other persons, pets or property
    • unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy
    • stalking or following the family member
    • intentional damage to property

  • in the case of a child, direct or indirect exposure to family violence

How have judges interpreted this definition of “family violence”?

The Act defines “family violence” broadly. As one judge wrote,

“The broad and inclusive definition of “family violence” recognizes that the kinds of harm that can be inflicted in this situation extend beyond the infliction of physical violence.”
Morgadinho v. Morgadinho 2014 BCSC 192, paragraph 59


Harassing calls, emails or texts, and bullying, controlling behaviour were found to come within the definition of family violence in these cases:

X. v. Y. 2015 BCSC 336
M.W.M. v. J.D.K. 2015 BCPC 315
S.T. v. I.I. 2015 BCPC 347

However, there are limits. As another judge wrote,

“ …care must taken to distinguish between mutually unpleasant exchanges separating parties sometimes engage in, particularly through the informal medium that email and text messaging has become, and the commission of acts of "family violence" as defined in the Act. Without more, mere incivility is not the sort of conduct the Legislature intended would attract a protection order.”
S.M. v. R.M., 2015 BCSC 1344, paragraph 24 9


and

“… confrontation and the resultant stress do not necessarily constitute family violence. … to provoke or engage in arguments or demands, to press the other’s patience, or to, in the parlance, “push their buttons” is not necessarily to engage in family violence. Simply put, the Family Law Act proscribes any family violence, but it does not require of us that we be “nice people”.”

J.R.E. v. D.J.E., et. al. 2013 BCSC 2038, paragraph 21

In Cabezas v. Maxim 2014 BCSC 767 a judge found that a combination of behaviour met the definition of “family violence”.

How have judges assessed the likelihood of family violence?

On a sliding scale. In Dawson v. Dawson 2014 BCSC 44 the judge said even a single act of family violence in the past may be enough to prove that family violence is likely to occur in the future. A single act may be given less weight if it happened a long time ago. But if the circumstances that contributed to it still exist, a single act could be enough to justify a protection order.

This case also says that judges should consider the seriousness of the potential harm when deciding whether family violence is likely to occur. He suggested there should be a sliding scale so protection orders can be made if there is a risk of very serious acts of violence, even if the those acts are “not particularly likely”. 10

Enforcement of a protection order

A police officer who has reasonable and probable grounds to believe a person has disobeyed a protection order may enforce the order, using reasonable force if necessary 11.

A person who disobeys a protection order may be charged with a criminal offence under s. 127 of the Criminal Code. If they are found guilty, they can be sentenced to up to two years in jail.


1 Section 183 (1)
2 Section 186
3 Sections 186 (2) and 187
4 Section 215
5 Defined in Family Law Act section 1
6 Defined in Family Law Act section 1
7 A “peace bond” under Criminal Code section 810, or a bail order if a criminal charge is laid
8 Defined in Family Law Act section 1
9 Nevertheless, in S.M. v. R.M. the respondent’s conduct was found to go far beyond “mere incivility” and come within the definition of family violence.
10 Dawson v. Dawson 2014 BCSC 44, paragraphs 44 and 45
11 Section 188 (2)

This article provides general information only and should not be used authority in court proceedings or as a substitute for legal advice.