How can I get an urgent protection order or have one set aside?

Posted to: 
Law
17/05/2021

Note: Some appearances in family matters are being conducted by telephone, audio- or video-conference. The court registry will tell you if your appearance will be virtual or in-person. Before attending a virtual court appearance, be sure to read Virtual conferences and hearings (by phone or video).

If you fear family violence you may be able to get an order from the Provincial Court to protect yourself and/or a child, using procedures that speed up the usual application process.

This eNews article will outline procedures for getting a hearing quickly if:

• you fear family violence and are asking for a protection order
• a protection order has been made without notice to you, you believe it’s not justified, and you are asking to have it changed or set aside

Protection Orders

If you are in immediate danger, call 911 or your local police emergency number.

A protection order is a court order made to protect one family member from another family member if there is a risk of family violence. See the definitions of “family member” and “family violence” in section 1 of the Family Law Act.

The order usually lists conditions (rules) the person named in it must follow. For example, they might be ordered not to have contact or communicate with the family members who need protection.

However, applying for a protection order in Provincial Court may not be your only option. For example, if the order you’re seeking would contradict an order about parenting arrangements made by the BC Supreme Court, you should apply for a protection order in that court. The Legal Aid web page Protecting yourself & your family can help you decide whether to apply for a protection order in Provincial Court.

The Application About a Protection Order form explains what you need to do and where you can get help.

You may present evidence at a hearing on an application for a protection order either by testifying or in written affidavits. The Application About a Protection Order includes an affidavit for you to fill out (Schedule 1). It can be your evidence at your hearing. You can also present affidavits from other people who have seen or heard things that are relevant to your application. See The first rule about evidence – it must be relevant to find out what “relevant” means.

Do I have to let the person I fear know that I’m applying for a protection order?

It is unusual for a judge to grant an order without having heard both sides - fairness requires that both parties have a chance to be heard before a decision is made. However, if an immediate order is necessary to protect you or a child and notifying the other party might create a risk, the judge can permit you to have a hearing without giving the other party notice.

If you say you don’t want to give the other party notice in your Application About a Protection Order, in most cases your application will be scheduled before a judge the same day you file it. After hearing from you the judge will decide whether you need to give notice to the other party. If you do not need to give notice, the judge will give you a chance to present your case and they will make a decision on your protection order application. If notice to the other party is required, you’ll be told the steps you need to take before your application is considered.

To proceed without giving the other party notice, you will have to satisfy the judge that there is a real risk if you are required to notify the other party before your application is heard. See Urgent Without Notice Orders and Protection Orders – what the Family Law Act says and how judges have interpreted it. Legal Aid also offers a step-by-step guide - How to apply for a family law protection order without notice.

If the judge makes a protection order, you will usually be given a copy before you leave the courthouse. You will be required to give the court whatever information you have about where the person bound by the order can be found. The court registry will arrange to have a copy of the order, your application, and affidavit(s) served on (delivered to) the person bound by the order.

Setting aside a protection order.

If a protection order has been made against you in Provincial Court and you believe it is not justified, you can apply to change it or set it aside (cancel it). You must file an Application About a Protection Order, filling out Schedule 2 if you want to change the order and Schedule 3 if you want to cancel it. Then have a filed copy, with any supporting documents, served on (delivered to) the other party by an adult other than yourself.

The court registry will provide you with a court date. The other party is usually entitled to at least seven days notice of your application before the court date. However, it may be possible to have your application heard by a judge with less than seven days notice if the matter is urgent. Use an Application for case management order without notice or attendance to ask a judge to shorten the notice period, and follow the instructions on the form.

At your first court date the judge will try to determine whether the legal requirements for a protection order were met. If the judge can decide this quickly by hearing brief evidence or reading any short affidavits that have been filed, they may be able to make a decision on the first day you and the other party attend. Even if you have filed an affidavit, the judge may still require you to provide other evidence by testifying at a hearing.

Time in court is limited, particularly at a first appearance on an urgent application, so it is very helpful for the judge to be able to read any relevant documents before your court appearance. You can provide them to a judge by filing an affidavit in the court registry and delivering a copy of it to the other party with your application. Any affidavits or documents you prepare should be as short as possible.

An affidavit should include the relevant facts. Relevant documents can be attached to it. You may also file affidavits from other people who have heard or seen things that are relevant to your application. See The first rule about evidence – it must be relevant to find out what “relevant” means.

But if the matter is more complicated or requires more evidence, you will be referred to a judicial case manager to set a date for a hearing. The judge may make an interim (temporary) order that will remain in place until the matter can be heard.

Do I need a lawyer?

You don’t need to have a lawyer to make applications in court or to file court documents, but you may find it very helpful to speak to a lawyer about your problem. A lawyer can give you advice about your legal issues and can help you understand court forms and processes. They can also help you prepare for a hearing or other court appearance.

See Getting a lawyer or legal advice for help finding a lawyer or legal advice service. It includes free or low-cost options.

More information