IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         T.V. applies to set aside a protection order made by this Court on June 20, 2017. The order prevented or limited contact or communication with L.V. and their youngest child T.M.V. (“T”), who is now 22 years old. 

[2]         L.V. concedes that because T. is now an adult, the protection order should be cancelled in relation to him. However, L.V. asks for the order to remain in place for her protection.

[3]         The parties are the parents of four children.

[4]         On October 26, 2015, Mr. Justice Truscott of the BC Supreme Court made an order for divorce.

[5]         The October 26, 2015 order included the following terms made pursuant to the Family Law Act:

[6]         Pursuant to the Divorce Act, the October 26, 2015 order required T.V. to pay child support of $2,288 per month for the two children commencing November 1, 2015.

[7]         The October 26, 2015 order also required the parties to communicate with each other for certain reasons, including the following:

[8]         The October 26, 2015 order also provided for the division of two pensions and other property. The parties were given liberty to apply to the court for directions and further orders to facilitate and enforce the division of these assets.

[9]         On June 6, 2017, L.V. made a without-notice application to this court for a protection order under the Family Law Act. The application was heard that same day and this Court made a protection order preventing T.V. from having any contact with L.V. and T. The protection order expired on June 20, 2017. The application was then adjourned to June 20, 2017, and the Court directed that T.V. be served.

[10]      On June 15, 2017, T.V. was served with the application materials for the protection order, which included L.V.’s affidavit filed on June 16, 2017. I note that none of the documents served on T.V. stated that the application for a protection order had been adjourned to June 20, 2017. The June 6, 2017 order only said the order expired on June 20, 2017.

[11]      On June 20, 2017, this Court heard the application for a protection order in the absence of T.V. The basis for the protection order was L.V.’s affidavit filed on June 6, 2017. The affidavit referred to incidents of verbal and physical violence directed at L.V. and the children. Before me, T.V. denied some of the allegations of violence and said at times, both parties were physical with each other.

[12]      As a result of the application, the Court made a protection order that T.V. have no contact with L.V. and T., and that T.V. not go to their residence, school or place of employment.

[13]      The order would remain in effect without an expiration date unless varied or cancelled by further court order. T.V. could apply to set aside the order after giving L.V. 10 days’ notice of the application.

[14]      T.V. made no attempts to set aside the protection order until his application filed on March 1, 2023, which came before me. I was not told why he delayed so long.

[15]      The purpose of a protection order is to protect “at-risk family members” from “family violence.”

[16]      Family Law Act s. 1 defines “family member” as follows:

[17]      L.V. and the child T fall within the definition of “family member.”

[18]      Family Law Act s. 182 defines “at-risk family member” to mean “a person whose safety and security is or is likely at risk from family violence carried out by a family member.”

[19]      Family Law Act s. 1 defines “family violence” as follows:

[20]      Family Law Act s. 183(2) sets out the test for making a protection order, which is whether family violence is likely to occur against an at-risk family member.

[21]      Family Law Act s. 183(4) states that a protection order expires after one year unless the court provides otherwise.

[22]      Family Law Act s. 184 sets out the factors to consider in an application for a protection order. It states as follows:

[23]      Family Law Act s. 187 provides the court with the authority to shorten or extend the term of a protection order, to change the order or to terminate it.

[24]      Family Law Act s. 188 provides that a protection order cannot be enforced under the Family Law Act or the Offence Act. This leaves as the only recourse s. 127 of the Criminal Code of Canada, which makes it an offence to disobey a court order.

[25]      The Family Law Act is divided into thirteen parts. Part 9 of the Act deals with “Protection from Family Violence” and contains the provisions dealing with a protection order. Section 189(2) provides that if there is any conflict or inconsistency between a protection order and an order made under any other Part of the Act, that other order is suspended to the extent of the conflict or inconsistency until either that other order, or the protection order, is varied to eliminate the conflict or inconsistency, or the protection order is terminated.

[26]      According to s. 189(2), the effect of a protection order prohibiting contact with a child of the parties would be to suspend any parenting time order involving that child. In this case, however, the parenting time order is from the Supreme Court. This raises the question of whether a Provincial Court protection order can suspend the terms of a Supreme Court order where there is a conflict or inconsistency between the two orders. I will discuss this question in further detail later in my Reasons.

[27]      T.V. said it has been five and a half years since the protection order was made and there have been no issues.

[28]      T.V. testified that the protection order has prevented him from seeing his children. He missed the children’s school graduations and has never received copies of their transcripts, a requirement under the October 26, 2015 order of the Supreme Court.

[29]      T.V. saw his children at his father’s funeral two years ago and was not able to speak to them. I note that the protection order only applied to one of the children, T.

[30]      T.V. also testified that he had a stroke in December 2022. He now hopes to return to work at the waterfront in a position that would require him to have security clearance. T.V. is concerned that the protection order may prevent him from obtaining the security clearance but he offered no actual evidence that this was a possibility.

[31]      T.V. also said his obligation to pay child support for his daughter is being enforced by the Family Maintenance Enforcement Program because she is in post-secondary education. He plans to apply to the Supreme Court to vary his support obligation given his circumstances and because the child is now an adult.

[32]      T.V. suggested that there should be an order for each party to not have contact with the other.

[33]      L.V. confirms that there has been no in-person interaction with T.V. since the protection order was made. However, there have been text communications.

[34]      On August 26, 2020, T.V. sent a text message to L.V. It contained a discussion of child support and referred to L.V.’s brother and the children. There were no threats to L.V.

[35]      On October 30, 2020, T.V. sent a text message to L.V. which was addressed to T.J. and N., two of the children. Neither of these children was covered by the protection order. T.V. said he had no other means of communication with the children.

[36]      On January 20, 2021, T.V. sent a text message to L.V. which was addressed to all four children to advise that his father had died.

[37]      On February 4, 2021, T.V. sent a text message to L.V. In reading the message, it was apparent that the message was meant for the children and that T.V. was thanking them for coming to his father’s funeral service.

[38]      On May 1, 2021, T.V. sent two text messages intended for L.V. The messages asked when child support for N. would end and for unspecified documents. He suggested that L.V. ruined his relationship with his grandchildren.

[39]      On June 4, June 17, and August 3 of 2021, T.V. sent L.V. further text messages that appeared to have been directed at the children.

[40]      T.V.’s sister is named M.V. M.V. had text message communications with L.V. between January and April 2022. Those messages were put into evidence and included copies of messages T.V. sent to L.V.’s brother, Tom, and the child N.

[41]      Under Provincial Court Family Rule 68(1)(b), an application to change or terminate a protection order is made by filing a Form 12 Application About a Protection Order.

[42]      Neither the Family Law Act nor the Rules set out the considerations for changing or terminating a protection order.

[43]      Family Law Act s. 215 says that subject to the Act, a court may change, suspend or terminate an order if there has been a change in circumstances since the order was made.

[44]      Rule 159 says that a court may set aside order made in the absence of a party. Such an application has to be pursued within a reasonable time, which was not the case here. In my view, Rule 159 has no application here.

[45]      Family Law Act s. 183(2) sets out the test for making a protection order, which is whether family violence is likely to occur against an at-risk family member.

[46]      In an application to terminate a protection order, I am of the view that the applicable test is whether there has been a change in circumstances such that family violence is no longer likely to occur against the at-risk family member.

[47]      A protection order may also be set aside when the order was obtained in the absence of the respondent party, and the applicant failed to provide full and accurate disclosure.

[48]      In the decision Williams v. Williams, 2022 BCSC 517, the court stated in para. 91:

[49]      The rarity of a non-expiring protection order was affirmed in the decisions C.Y.J. v. R.J, 2022 BCSC 1901 starting at para. 60 and S.H.A. v. S.S.H., 2023 BCPC 41 at para. 22.

[50]      The exceptional nature of a non-expiring protection order is also demonstrated by the fact other similar orders, such as a Criminal Code peace bond or a probation order preventing contact with a person, are always time limited.

[51]      The decision in S.H.A. v. S.S.H. also recognized starting at para. 16 the exceptional nature of ex parte or without-notice proceedings, which are to be reserved for urgent cases. At para. 22, Judge Campbell endorsed a practise that ex parte orders “should be for a specific time frame, allowing for the possibility that a further protection order could be issued with the person against whom the order is made having an opportunity to respond.” Although there may be exceptions in the clearest of cases, I agree with the practice suggested by Judge Campbell.

[52]      As I set out earlier, s. 189(2) of the Family Law Act states that the effect of a protection order prohibiting contact with a child of the parties would be to suspend any parenting time order involving that child.

[53]      The Family Law Act does not deal with the situation where the parenting time order was made by the Supreme Court and the request for a protection order is made to the Provincial Court.

[54]      Family Law Act s. 193 provides that the Provincial Court and the Supreme Court have concurrent jurisdiction over certain matters, including parenting time. The exceptions are those matters referred to in s. 193(2).

[55]      Where the Supreme Court has made an order granting certain relief in an area of concurrent jurisdiction, the Provincial Court is prevented from making an order granting or denying that same relief: Family Law Act s. 194(1)

[56]      Sections 194(1) and 189(2) potentially conflict with each other because of the possibility a Provincial Court protection order will suspend a Supreme Court parenting time order.

[57]      In such circumstances, I am of the view that absent urgent circumstances, an application for a protection order in the face of a Supreme Court parenting time order made under the Family Law Act, should be heard by the Supreme Court. Where there are urgent circumstances, such as the imminent risk of physical harm, the Provincial Court might consider a time-limited protection order to allow the applicant the opportunity to apply to the Supreme Court for a protection order. Such an order should be made on a without prejudice basis to the Supreme Court hearing a further application for a protection order. By doing so, a Provincial Court protection order should not prevent the Supreme Court from considering a further application for a protection order, which might otherwise occur due to s. 194(2) of the Family Law Act.

[58]      I add that s. 189(2) only applies to orders made under the Family Law Act. Where the Supreme Court has made a parenting time order under the Divorce Act, a protection order would not affect it.

[59]      The text messages sent by T.V. to L.V. are clearly in contravention of the protection order. However, I do not see those messages as threatening.

[60]      There has been no physical contact between the parties since the order was made almost six years ago.

[61]      Given the amount of time that has passed since the order was made and the lack of any incidents of family violence, I find that there has been a change in circumstances since the June 20, 2017 protection order was made.

[62]      The evidence is such that I am satisfied it is no longer likely that T.V. would cause any family violence against L.V.. This is not a situation where violence has been escalating, as was the case in the decision F.Z. v. A.G.Z., 2018 BCSC 1248.

[63]      I recognize that L.V. has a continuing fear of T.V., but that is not the test to be applied when granting a protection order.

[64]      I also take into account that a permanent protection order is a very rare remedy.

[65]      Furthermore, the effect of the protection order was to interfere with a Supreme Court order. For reasons stated above, this should be avoided except in the case of emergencies, and then only on an interim basis to permit the parties to proceed to the Supreme Court for the appropriate order.

[66]      Given all these factors, I am satisfied that the June 20, 2017 protection order should be set aside.

[67]      I considered whether I should impose a conduct order preventing contact or communication between the parties. As I described earlier, the October 26, 2015, Supreme Court order required the parties to communicate with each other. A conduct order to prevent the parties from having contact or communication would be inconsistent with the terms of the Supreme Court order. It could also interfere with T.V.’s ability to serve L.V. with an application to vary the child support order, since even service by a third party may be viewed as a contravention of a no-contact order.

[68]      I find that I lack the jurisdiction to make a conduct order preventing the parties from having any contact or communication. Such an order can only be obtained from the Supreme Court.

[69]      My order is as follows:

[70]      The Court Registry will draft this order and provide a copy to the parties. I am no longer seized of this matter.