Protection orders or formerly known as personal restraining orders

Personal restraining orders are now termed “Protection Orders” and dealt with by Part 9 of the Family Law Act.

The Ministry of Justice explanation reads as follows:

Explanation from the Ministry of Justice

Existing restraining orders, which prohibit harassment and contact in specified circumstances, are replaced with one type of order: a “protection order”. A protection order is a safety-related order. Breaches of a protection order will be a criminal offence and may be enforced under s. 127 of the Criminal Code.

Use of the Criminal Code to enforce protection orders will promote timely, effective enforcement, which can save lives. It streamlines enforcement and limits it to the criminal justice system, where the police and Crown counsel are familiar with the processes and tools. It sends the message that breaches of protection orders will be taken seriously.

As well, the new protection order scheme:

broadens the range of family members who are eligible to apply for protection orders;

clarifies the procedure to ensure protection orders are accessible, clear, and effective; and

provides guidance on risk factors to promote the use of protection orders in appropriate and safety-related situations.

The new regime responds to recommendations made in numerous reports, including the Keeping Women Safe report and the Representative for Children and Youth’s Honouring Christian Lee report, which say consistent enforcement of protection orders is critical to increasing victim safety. The previous scheme, which was enforced through civil law, was identified as problematic on a number of levels. Inconsistent enforcement of civil restraining orders was identified as an issue that impacts families’ safety and confidence in the justice system.

To ensure a consistent approach to enforcement of safety-related orders, breaches of orders to protect children made under the Child, Family and Community Service Act (Protective Intervention Orders under s. 28 or Restraining Orders under s. 98) will now also be enforced through s. 127 of the Criminal Code. This will allow for consistent and streamlined enforcement of civil orders to protect families and children regardless of whether they receive their protection order under the family law or the child protection law.

Protection from family violence

Sections 182 through 191 deals with the protection from family violence and reads as follows:

Definitions

182 In this Part and the regulations made under section 248 (1) (d) [general regulation-making powers]:

“at-risk family member” means a person whose safety and security is or is likely at risk from family violence carried out by a family member;

“residence” means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence.

Explanation from the Ministry of Justice

Section 182 creates definitions necessary to support interpretation of the other sections in this Part.

Commentary

Section 182 broadens the definition of the range of persons who are eligible to apply for a protection order while also expanding the definition of “residence” for the “at-risk family member”. The definitions provided support the interpretations for the sections under Part 9.

Orders respecting protection

183 (1) An order under this section

(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative, and

(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) 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.

(3) An order under subsection (2) may include one or more of the following:

(a) a provision restraining the family member from

(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,

(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,

(iii) following the at-risk family member, or

(iv) possessing a weapon or firearm;

(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;

(i) remove the family member from the residence immediately or within a specified period of time,

(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or

(iii) seize from the family member any weapons or firearms and related documents;

(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(e) any terms or conditions the court considers necessary to

(i) protect the safety and security of the at-risk family member, or

(ii) implement the order.

(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.

(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.

Explanation from the Ministry of Justice

Section 183 establishes the framework for the new protection order regime.

It provides that a protection order may be made against a family member where there is a safety concern. The broadened range of eligible family members (as defined in s. 1 of the Act) is consistent with domestic violence laws elsewhere in Canada.

The section allows for an application for a protection order to be made by the at-risk family member or by another person on behalf of the at-risk family member. For example, the mother could also apply for a protection order on behalf of her child. It also allows for the court to make an order on its own initiative, where a risk is identified.

The section clarifies that protection orders are available on a stand-alone basis; they may be made at any time and need not be connected to other family law proceedings.

Section 183 limits the terms that may be included in protection orders to ensure they are safety-focused and appropriate for enforcement by police and the criminal justice system. This is intended to promote more consistent, timely and effective enforcement. Under the Family Relations Act, many restraining orders also included provisions that were not safety-related, which undermined the seriousness of the order and resulted in enforcement challenges. The new regime creates a division between orders for risky and non-risky behaviours to promote more effective enforcement appropriate to the situation. If a person requires an order for non-safety-related issues, there are “conduct orders” available under Part 10 of the Family Law Act that are enforced through family law remedies, whereas the safety-related protection orders are enforced through the criminal law remedies.

The section provides a default expiry date of one year unless the court specifies a different duration. Under the Family Relations Act, many orders had no end date, which caused enforcement problems since police were unable to tell whether the order remained relevant. The default expiry date allows judges to tailor orders while providing greater clarity for the police in their enforcement role as compared to orders that do not provide an end-date. Peace bonds under the Criminal Code also expire after a year.

As with all orders, a protection order takes effect the moment the judge makes it and it must be complied with right away. Under s. 229 of the Act, an order may be enforced whether or not service has been proven. If the order was made without notice, and a police officer is called to enforce a protection order in the case where the person did not know about the order, the police officer can advise the person and take necessary steps to promote safety.

A protection order is not to be combined within the same document as other types of orders.

This will ensure that the orders in the Protection Order Registry are safety related and that those safety-related provisions are easily identifiable.

Section 183 replaces ss. 37, 38 and 126 of the Family Relations Act.

Commentary

The concept of the protection order under this new regime provides that:

Another person can apply for a protection order for the at-risk family member.

A party may still be granted a protection order even though they may no longer reside with the opposing party; for example, if women are in a transition house they will still be able to apply for a protection order.

The court can make an order for protection on its own discretion.

The protection order can be made at any time and is available to those at risk on a “stand alone basis” without necessitating that a family court action has been commenced.

The orders have a one year expiry unless the court otherwise directs. The one-year expiry date reflects the time frame for peace bonds under the Criminal Code.

The orders provide for effective enforcement measures by all members of the criminal justice system including directions for police officers to protect the subject of the protection order.

Under this new regime the FLA distinguishes between safety-related orders—protection orders under this section—and non-safety related orders that can be addressed under “conduct orders” under Part 10 of the Act.

Most significantly, protection orders will be enforced through the criminal justice system, under s. 127 of the Criminal Code. A breach of a protection order under this new regime will be a criminal offence.

Parties can apply for protection orders in Provincial or Supreme Court.

Peace bonds are still available for parties seeking to pursue safety-related orders through the criminal courts.

Whether to make protection order

184 (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors:

(a) any history of family violence by the family member against whom the order is to be made;

(b) whether any family violence is repetitive or escalating;

(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;

(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;

(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;

(f) the at-risk family member’s perception of risks to his or her own safety and security;

(g) any circumstance that may increase the at-risk family member’s vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account

(a) the history of, and potential for, family violence,

(b) the extent of any injuries or harm suffered, and

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist:

(a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;

(b) the family member against whom the order is to be made is temporarily absent from the residence;

(d) criminal charges have been or may be laid against the family member against whom the order is to be made;

(e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred;

(f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made.

Explanation from the Ministry of Justice

Section 184 provides guidance to courts on when protection orders should be ordered.

It lists risk factors courts must consider in determining whether family violence is likely to occur and whether it is appropriate to make a protection order. The risk factors are consistent with risk assessment research and tools used in British Columbia and across Canada by police and the justice system.

The section also provides factors for a court to consider when determining whether the order should be made against only one person in cases where both parties are seeking protection orders against each other. Mutual orders may not be appropriate where one person is the primary aggressor and one is repeatedly a victim.

Section 184 also provides examples of circumstances that should not preclude the making of a protection order, including whether the victim has previously returned to the home after incidents of family violence or whether criminal charges have been laid.

Commentary

Section 184 obligates the court to engage in an assessment of potential risk factors that may warrant ordering a protection order. This section provides a non-exhaustive list of risk factors that the court “must” “at least” consider in their determination process of either ordering or not ordering a protection order.

If child a family member

185 If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order],

(a) whether the child may be exposed to family violence if an order under this Part is not made, and

(b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child’s parent or guardian.

Explanation from the Ministry of Justice

Section 185 adds additional factors to be considered when making a protection order where children are involved.

It requires the court to consider whether a child family member specifically requires protection in any circumstance where family violence may occur including to protect them from exposure to family violence.

This section responds to recommendations, such as those from the Representative for Children and Youth in the Honouring Christian Lee report, that challenge the assumption that the safety of a child is secured through the safety of the parent. It recognizes that children may specifically require protection as well.

Commentary

In addition to the factors outlined in s. 184, under s. 185 in the event the court is faced with assessing whether to order a protection order for a child, the court must assess whether the child will witness or be exposed to violence if an order is not made; and whether the child separately requires a protection order, regardless of whether an order is made for a child’s parent or guardian.

Again the court is obligated to review these factors; the legislation provides that the court “must” engage in this additional assessment where children may face a safety risk.

Orders without notice

186 (1) An application for an order under this Part may be made without notice.

(2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may

(a) set aside the order, or

(b) make an order under section 187 [changing or terminating orders respecting protection].

Explanation from the Ministry of Justice

Section 186 clarifies that protection orders can be made without notice, and sets out how an order may be set aside, changed or terminated.

It establishes that in cases where family violence is a risk, orders without notice may be appropriate to promote safety.

Where an order is made without notice, the court may set aside or change the order if the order is not appropriate on consideration of the evidence of the party against whom the order was made. If the order is set aside, it is like the order never was and there is no prejudice to the party.

Changing or terminating orders respecting protection

187 (1) On application by a party, a court may do one or more of the following respecting an order made under this Part:

(a) shorten the term of the order;

(b) extend the term of the order;

(d) terminate the order.

(2) An application under this section must be made before the expiry of the order that is the subject of the application.

(3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection].

Explanation from the Ministry of Justice

Section 187 allows the court to shorten, lengthen, terminate or otherwise change a protection order after it is made to address changing circumstances or evolving risk.

Commentary

The application must be made before the expiry of the protection order.

Enforcing orders respecting protection

188 (1) An order made under this Part may not be enforced

(a) by means of any order that may be made under this Act, or

(b) under the Offence Act.

(2) A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may

(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and

(b) if necessary for the purpose of paragraph (a), use reasonable force.

Explanation from the Ministry of Justice

Restraining orders under the Family Relations Act were enforced through civil law. Enforcement of restraining orders under the Family Relations Act was identified as a critical justice system failure.

Section 188 replaces s. 128 of the Family Relations Act, which provides for civil enforcement through the Offence Act, with a section stating that neither the Offence Act nor the Family Law Act apply to the enforcement of a protection order.

The Act deliberately remains silent on how protection orders are to be enforced. This is necessary to allow for enforcement through the Criminal Code. Section 127 of the Criminal Code is a default enforcement mechanism that, by its terms, applies only where there is no other remedy available under the statute. Section 127 of the Criminal Code is successfully being used to enforce civil protection orders in Manitoba, and recently Ontario amended its legislation to do the same.

Police authority to act on a breach of a protection orders is also clearly provided for. This will avoid confusion and promote consistent police enforcement at the time of a breach.

The protection order itself will be a civil order. When the order is breached, the breach triggers the use of the Criminal Code. If the restrained party never breaches the protection order, they are never brought into the criminal system.

Using the Criminal Code to enforce protection orders will promote timely, effective enforcement, which can save lives. It streamlines enforcement and limits it to the criminal justice system, where the police and Crown counsel are familiar with the processes and tools, and it sends the message that breaches of protection orders will be taken seriously.

Conflict between orders

189 (1) In this section, “protection order” means any of the following orders:

(a) an order made under this Part;

(b) an order, made under the Criminal Code, that restricts a person from contacting or communicating with another person;

(c) an order, made by a court in British Columbia or another jurisdiction in Canada, that is similar in nature to an order made under this Part.

(2) If there is a conflict or an inconsistency between a protection order and an order made under a Part of this Act other than this Part, the other order is suspended, to the extent of the conflict or inconsistency, until

(a) either the other order or the protection order is varied in such a way that the conflict or inconsistency is eliminated, or

(b) the protection order is terminated.

Explanation from the Ministry of Justice

Section 189 gives priority to safety-related orders in cases where they conflict with another order relating to a family law dispute. These orders include: protection orders under the Family Law Act, orders under the Child, Family and Community Service Act and the Criminal Code, or safety-related orders made under legislation from another province.

For example, if a parent has parenting time but later bail conditions prohibit contact with the child, the safety-related bail conditions prevail and there is to be no contact with the child until the issue or inconsistency between the orders is resolved.

This will promote safety, eliminate confusion and provide for a consistent approach.

Rights not affected by Act

190 The making of an order under this Part does not affect any existing right of action of a person who has been the subject of family violence.

Explanation from the Ministry of Justice

Section 190 states that the making of a protection order does not affect any existing right of action of a person affected by family violence.

It clarifies that a person affected by family violence may continue to pursue civil or criminal proceedings in tandem with obtaining a protection order.

Extraprovincial orders

191 The Enforcement of Canadian Judgments and Decrees Act applies to an order, made by a court in another jurisdiction of Canada, that is similar to an order made under this Part.

Explanation from the Ministry of Justice

As part of the new protection order regime, consequential amendments have been made to the Enforcement of Canadian Judgments and Decrees Act which adopt the Uniform Law Conference of Canada’s recommendations. These amendments allow civil protection orders made by judges elsewhere in Canada to be enforced like protection orders from British Columbia without the need to register the out-of-province order. Manitoba, Saskatchewan and Nova Scotia have already enacted these amendments.

This section is intended to promote greater safety and consistency across Canada.

Commentary

Section 191 provides for the consistency of civil protection orders under the new protection order regime. This section provides that civil protection orders made by judges outside B.C. in other Canadian jurisdictions are to be enforced like B.C. protection orders. Furthermore, this section provides that out-of-province orders will not need to be registered to be enforced.

Consequential amendments have been made to the Enforcement of Canadian Judgments and Decrees Act to reflect the enforcement of such orders across Canada. Manitoba, Saskatchewan and Nova Scotia have enacted such amendments.

In I. (H.) v. I. (E.), 2011 NUCJ 32, the court provides detail on the basis for emergency protection orders and the determination of interim custody arrangements until further issues of violence could be evidenced at trial.

Some resources, which were highlighted in the White Paper, may help guide your practice as it relates to family violence:

M. Shaffer, “The Impact of Wife Abuse on Child Custody and Access Decisions”, (2004) 22 C.F.L. Q. 85.

N. Bala, P. Jaffe, and C. Crooks, “Spousal Violence and Child-Related Cases: Challenging Cases Requiring Differentiated Responses,” (2007) 27 (1) C.F.L.Q.

Additionally, the following organizations have produced significant resources related to family violence and children who witness violence:

Ending Violence Association of British Columbia:
http://www.endingviolence.org
Battered Women’s Support Services:
http://www.bwss.org
Legal Services Society British Columbia:
http://www.familylaw.lss.bc.ca/legal_issues/abuse.php
Clicklaw operated by the Courthouse Libraries British Columbia:
http://www.clicklaw.bc.ca/solveproblems/search?f=Abuse+%26+family+violence

Determining parentage of a child

The determination of who is a child’s parent is set out in Part 3 of the Family Law Act.

The parents of a child without the involvement of non-assisted reproduction (“sexual intercourse” in plain language), section 26 of the Family Law Act applies and reads as follows:

Parentage if no assisted reproduction

26 (1) On the birth of a child not born as a result of assisted reproduction, the child’s parents are the birth mother and the child’s biological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child’s biological father in any of the following circumstances:

(a) he was married to the child’s birth mother on the day of the child’s birth;

(b) he was married to the child’s birth mother and, within 300 days before the child’s birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21 [void and voidable marriages];

(d) he was living with the child’s birth mother in a marriage-like relationship within 300 days before, or on the day of, the child’s birth;

(e) he, along with the child’s birth mother, has acknowledged that he is the child’s father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child’s father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

(3) If more than one person may be presumed to be a child’s biological father, no presumption of paternity may be made.

What if a male denies he is the child’s biological father? Section 33 of the Family Law Act applies and reads as follows:

Parentage tests

33 (1) In this section, “parentage tests” are tests used to identify inheritable characteristics, and include

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.