Getting protection when you need it through the courts

One of the few reasons worth going to court is to obtain protection for yourself and your family. When conflict escalates to a perilous point, a judge can step in to remove, or at least distance, the source of conflict, so that you can feel safe to move forward with your life.

Family violence encompasses a wide range of threats to your personal safety and well-being, including physical and sexual abuse, psychological or emotional abuse, and, in the case of children, direct or indirect exposure to family violence. Although it can sometimes feel like a grey area whether you are experiencing violence or not, if you feel unsafe in your household, mentally or physically, there is no need to wait for it to get worse before taking steps to protect yourself and your children.

Under section 183 of the Family Law Act, a court may make an order against a family member for the protection of another family member if the court determines that family violence is likely to occur, and the other family member is an ‘at-risk’ family member. An at-risk family member is a person whose safety and security is, or is likely to be, at risk from family violence carried out by a family member. Because of this definition, it is not necessary to wait for physical violence to occur. For the purposes of making an order, a judge or master simply needs to see that family violence is likely to occur, and you are likely at risk of being subjected to it.

A protection order under section 183 may include terms such as: restraining the family member from directly or indirectly contacting you, attending or nearing a place you regularly attend, following you, from possessing weapons, and even providing directions to a police officer to remove the family member from the residence, as well as any other terms the court may deem necessary to protect you and your family.

Unless the court orders otherwise, though, protection orders expire after one year, so you  need to go back to court to obtain a further order if you feel it is still necessary.

The other type of order that we frequently consider in these circumstances is an order for exclusive occupancy of the family residence. Under section 90 of the Family Law Act, the Supreme Court of British Columbia may make an order granting a spouse, for a specified period of time, exclusive occupation of a family residence, or possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse.

The test for exclusive occupancy orders is set out in Rinta v. Rinta 1980. In this case, it was held that the applicant for exclusive occupancy of the family home must show that shared use is a practical impossibility and that the claimant is the preferred occupant of the premises on the balance of convenience. According to Hazlewood v. Hazlewood 2008, a party’s fear of the other party is sufficient to make shared occupancy a practical impossibility.

If you are facing family violence, the first step is always to contact the police. If you continue to require assistance after that, the family law courts can intervene quickly and effectively to order protection for you and your family.

Have questions about family law? Please contact us!

NOT LEGAL ADVICE. Information made available on the Connect Family Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.