IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On November 24, 2022, S.H.A. applied for and was granted a protection order pursuant to the Family Law Act, S.B.C. 2001 c. 25 (the “Act”) against her former spouse S.S.H.  The application was made without notice to Mr. H. and was granted on an ex parte basis.

[2]         Mr. H. and Ms. A. were married for approximately 40 years.  They first separated in 2014 but resided together in the same home between 2019 and 2021.  Ms. A. states that they remained separated during that time although they lived in the same household.  Mr. H. left the home in August 2021 and he and Ms. A. have had limited contact with each other since that time.  The parties obtained a final divorce order on December 8, 2022.

[3]         Ms. A. applied for the protection order on November 24, 2022, before another judge of this Court.  The application proceeded on the basis of information that Ms. A. provided in the court form application, which she swore to be truthful.  No viva voce testimony was provided in support of the application.

[4]         The protection order was granted for a period of three months.  The order included protective conditions prohibiting Mr. H. from having any contact or communication with Ms. A. except through legal counsel or at scheduled court appearances.

[5]         Ms. A. applies for a new protection order as the initial protection order is set to expire on February 23.  Ms. A. is concerned for her safety and alleges that Mr. H. has been violent in the past and has engaged in harassing behaviour.  She submits that the protection order should remain in force until April 2024, when the parties are scheduled to go to trial in Supreme Court related to property that they shared during their marriage.

[6]         Mr. H. seeks to have the protection order set aside and is opposed to any further protection order.  He disputes the allegations that he has been violent or harassed Ms. A. and submits that there is no basis for a protection order. 

[7]         For the reasons that follow, I find that there are insufficient grounds for a further protection order. 

[8]         Section s. 183(2) of the Family Law Act, provides that a protection order may be issued against a family member for the protection of another family member if the court determines that family violence is likely to occur, and that the other family member is at risk of family violence.

[9]         Family violence is broadly defined in section 1 of the Family Law Act with the intent to provide protection to at-risk family members where it may be needed.  Family violence includes:

[10]      When considering whether to grant a protection order, s. 184(1) requires a court to consider the following risk factors:

[11]      The time frame of the family violence that is relied upon in an application for a protection order is an important factor.  As required by the Act, the application judge must consider whether any family violence has been escalating and whether there has been a recent separation or intention to separate.  These factors focus on recent and current circumstances in the relationship.  While historical violence is relevant, the recent history is particularly important to the question of whether there is a likelihood of future violence.  Every application is determined based on the particular facts and circumstances.  However, family violence that is recent and escalating may carry greater weight in establishing that there is a likelihood of future violence. 

[12]      Section 186(1) of the Act provides that an application for a protection order may be made without notice.  If an order is made without notice, the party against whom the order is made may apply pursuant to s. 186(2) to set aside or vary the terms of the order.

[13]      The purpose of allowing for an ex parte application is to permit protection orders to be issued on an urgent basis.  An ex parte application may be required if there is a risk of violence in simply giving notice to the other party, or if there is a risk of violence arising from any delay resulting from the requirement to serve notice on the other party. 

[14]      In applying for the initial protection order on November 24, 2022, Ms. A.’s counsel, who is different counsel than in the present application, submitted that the application was proceeding ex parte based on concerns about Ms. A.’s safety and that Mr. H. could be “triggered” by Ms. A. obtaining the final divorce order. 

[15]      This submission did not refer to the fact that Mr. H. supported the parties obtaining the final divorce order.

[16]      While the Family Law Act specifically allows for applications for a protection order without notice to the person against whom the order is made, the common law generally recognizes the exceptional nature of ex parte proceedings.  In Ruby v. Canada (Solicitor General), 2002 SCC 75 (CanLII), [2002] 4 SCR 3, the Supreme Court of Canada stated at para. 25:

[17]      In Kapoor v. Makkar, 2020 BCCA 223, Saunders J. stated at para. 11:

[18]      In T.C.S. v. T.A.M., 2004 BCPC 487, the court emphasized at para. 22 that ex parte orders are reserved for cases of urgency:

[19]      Although these authorities did not involve Family Law Act protection orders, they underscore the importance of providing notice to the opposing party and the exceptional nature of ex parte orders.

[20]      The proper functioning of the adversarial system depends on parties having notice of proceedings against them and an opportunity to respond.  The results of litigation are more likely to be reliable, well-founded and just if all parties have an opportunity to be heard.

[21]      If a party wishes to proceed ex parte, the application should include case-specific information as to why it is necessary to proceed without notice to the party against whom the order is to be made.

[22]      Protection orders are sometimes sought in the absence of an opposing party for an indefinite basis.  The circumstances that would justify a permanent protection order are exceptionally rare: Williams v. Williams, 2022 BCSC 517 at para. 91.  Particularly if an order is made in the absence of the opposing party, the order 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.

[23]      The importance of notice to the other party is demonstrated in the application before the court.  In seeking to have the protection order set aside, Mr. H. has filed a number of affidavits from himself and other family members.  The factual allegations underlying the initial application are disputed in the affidavit material filed by Mr. H.  This information would have been helpful to the judge who heard the initial application in determining whether a protection order was required. 

[24]      As noted above, the initial protection order expires on February 23.  Ms. A. seeks a further protection order.

[25]      Ms. A. relies on her account of a historical assault incident and what she describes as harassing behaviour by Mr. H.  She alleges that Mr. H. assaulted her on August 6, 2021 by pushing her a number of times.  She reports that she sustained abrasions and bruises and has provided a medical record documenting the injuries. 

[26]      Mr. H. was charged with assault as a result of this incident.  Ms. A. alleges that Mr. H. subsequently encouraged their adult children and others in the community to ask Ms. A. to drop the charges.

[27]      The assault charge was stayed by the Crown in December 2021.  It can be inferred that the charge was stayed because the Crown received further information relevant to the alleged assault.  One of the parties’ adult children, who has provided an affidavit in this proceeding, reports that he was present during the alleged assault and that it was Ms. A. who assaulted Mr. H. 

[28]      Mr. H. denies that he assaulted Ms. A. on August 6, 2021.  He states that Ms. A. assaulted him.  He has also provided a medical record documenting abrasion injuries that he says that he sustained in the incident.

[29]      There is directly conflicting evidence in the parties’ affidavit material with respect to the alleged assault and other factual matters underlying Ms. A.’s application for a new protection order.  However, both parties rely solely on affidavit evidence in this application.  Neither party has sought to cross-examine any of the affiants on their evidence. 

[30]      In the absence of oral testimony or cross-examination, it is not possible to resolve the factual differences in the affidavits.  However, it is my view that the information in Ms. A.’s affidavit material on its face does not establish grounds for a further protection order.

[31]      As noted above, the time frame of any incidents of alleged family violence is an important factor in determining whether there is a current risk of family violence.  Ms. A. relies upon a single incident of physical violence that is alleged to have occurred over 18 months ago.  The criminal charge was stayed by the Crown in January 2022, indicating that the Crown determined that the evidence no longer met the charge approval threshold.  With the exception of one voice mail, Mr. H. and Ms. A. have not seen or directly contacted each other since August 2021.

[32]      Ms. A. reports that Mr. H. left an abusive voice mail message for her in August 2022 in relation to the subject matter of the Supreme Court proceedings.  She has not provided a recording of the voice mail, a transcript of the recording, or even any quoted passages from the message.  She explains that the voice mail is in Arabic.  However, over six months have passed since the voice mail was received.  There has been sufficient time to arrange for a translation and transcription of the message.  Without further evidence as to the contents of the voice mail, I conclude that little weight can be placed on this evidence.

[33]      Ms. A. also says that Mr. H. threatened her during the marriage.  She has not described the threats in any detail, with the exception that when she first raised the issue of divorce, Mr. H. threatened that he would burn down the house.  However, this is alleged to have occurred over eight years ago.

[34]      It appears that the trigger for Ms. A. applying for a protection order was Mr. H. filing an action in Supreme Court in October 2022 in which Ms. A. was named as a defendant.  Ms. A. filed her application for a protection order in this court the following month.

[35]      The action in B.C. Supreme Court relates to Ms. A.’s home, which was the parties’ family home during the marriage.  When Ms. A. and Mr. H. separated in 2018, they entered into a consent final order that included Mr. H. transferring his share of the family home to Ms. A.  In exchange, Ms. A. waived any right that she had to support.

[36]      Mr. H. has filed an action seeking to set aside the consent order and seeking an interest in Ms. A.’s property.  He has also reportedly filed liens or certificates of pending litigation on the property. 

[37]      Ms. A. alleges that Mr. H. is engaging in “litigation abuse” by filing the Supreme Court action.  Ms. A. submits that Mr. H. is “dangerously mentally ill and unstable due to the malicious claim he has commenced”, and that the purpose of the litigation is to cause her emotional harm.

[38]      I am unable to conclude that Mr. H. is engaging in vexatious litigation with the intention to harass and harm Ms. A.  I have not been provided a copy of any of the pleadings in Supreme Court.  Further, it is not appropriate for this court to make findings with respect to the merits of the Supreme Court action.  The merits, or lack of merits, of the action are entirely within the jurisdiction of the Supreme Court.  The parties are both represented by counsel in the Supreme Court proceeding.  If the action is frivolous and vexatious as claimed by Ms. A., then the appropriate forum for a remedy is the Supreme Court. 

[39]      In seeking a protection order, Ms. A. also relies on reports that Mr. H. has walked past her house with their son.  She says that she has found cigarette butts and empty pop cans by the door.  She believes that these items were left by Mr. H.  The affidavit does not state when or how many times these incidents occurred.  It is alleged to have occurred prior to the initial application, as there is no suggestion that Mr. H. has breached the terms of the November 24, 2022 protection order.  Mr. H. denies the allegation that he has gone to Ms. A.’s home.

[40]      Ms. A. also alleges that Mr. H. arranged for her to be arrested on a Mental Health Act warrant in December 2021.  Ms. A.’s son applied for a Mental Health Act warrant at that time for Ms. A. to be assessed due to his concerns about her health.  Ms. A. was apprehended, assessed by hospital staff and released the same day.  Ms. A. believes that Mr. H. was behind the application based on something said by the police.  In my view, the evidence does not reliably establish that Mr. H. was involved in the application, let alone that he was involved for a nefarious purpose. 

[41]      There has been no suggestion that Mr. H. has breached the terms of the protection order during the three months that it has been in force.  Ms. A. submits that this indicates that the protection order was effective and that it should be continued.  However, I find that the evidence does not establish that there has been any family violence by Mr. H. for a significant period of time prior to this application. 

[42]      Ms. A. submits that she fears for her safety.  She submits that the court should consider her vulnerability in assessing whether a protection order is required.  She reports that she has mental health conditions such as depression and anxiety, and that her vulnerable condition weighs in favour of granting a protection order.

[43]      Pursuant to s. 184(1)(f) of the Act, the applicant’s perception of risks to her own safety and security is a relevant factor that must be considered.  For a protection order to be issued, however, any subjective fear of harm must have a reasonable and objectively justified basis: S.D. v. R.D., 2014 BCPC 294 at para. 9.

[44]      In my view, there is an insufficient objective basis for the issuance of a further protection order. 

[45]      There is no need to set aside the initial protection order as it expires on this date. 

[46]      The parties agree that if the protection order is not granted, they will enter into a conduct order pursuant to s. 225 of the Family Law Act by consent.

[47]      Pursuant to s. 225 of the Family Law Act, S.S.H. must have no contact or communication directly or indirectly with S.H.A., and S.H.A. must have no contact or communication directly or indirectly with S.S.H.  The exceptions are as follows: indirectly through legal counsel or while in attendance at any scheduled court appearances. 

[48]      Pursuant to s. 225 of the Family Law Act, Mr. H. and Ms. A. must not go to the other party’s place of residence.