Family Violence and Protection Orders

Family Violence

In any separation, the court is generally most concerned about preventing Family Violence and ensuring that the children's well being is protected. 

"Family Violence" is a defined term in the Family Law Act. It includes the following:

physical and sexual abuse;attempts to physically and sexually abuse; psychological and emotional abuse; anddirectly or indirectly exposing a child to any of the above (i.e., physical, sexual, psychological and emotional abuse). 

Any time the court is asked to consider making orders for Parenting Arrangements (i.e., care of the children and exercise of parental responsibilities), the court is required to assess whether there has been any Family Violence and how the Family Violence has affected the children. Section 38 of the Family Law Act contains a framework in order to assist the court in assessing the impact of the Family Violence.  

The bottom line is that the court treats the presence of Family Violence as a serious matter, and a finding that Family Violence has occurred will generally impact on the other orders a court will make such as "parenting time", which in turn can have an effect on other matters such as the amount of child support payable. 

Another important point is that if there has been Family Violence against your child, then you have duty as a parent to protect your child and to report this to the authorities, which include the Royal Canadian Mounted Police and the Ministry of Children and Family Services.  

Protection Order: s. 183 of the Family Law Act

A person can apply to the court for a Protection Order. This was previously known as a Restraining Order. 

The new Protection Orders have more far-reaching effects than the previous Restraining Orders. For example, a breach of a Protection Order is dealt with by criminal law. This means that if a person breaches the Protection Order, it is possible that the person will end up with a criminal record. 

If the court grants a Protection Order in order to protect you, the court can order terms such as:

prohibiting the offender from coming to your house or place of work; prohibiting the offender from contacting you; orprohibiting the offender from having firearms or other weapons in his or her possession. 

If the offender violates the Protection Order, you would then contact the local law enforcement agency in order to report the breach. The authorities would then investigate the situation and determine whether it was appropriate to refer the matter to the Crown attorney's office. 

Protection Orders can be granted by both the Supreme Court and the Provincial Court. It is procedurally simpler and free (i.e., no court fees) to make the application in the Provincial Court.

One of most dramatic effects of a Protection Order is that it can remove the offender from the Family Home. This effect operates similar to the effect resulting from an order for "Exclusive Residence", which can only be made in the Supreme Court. It is unclear whether this effect was intended and it is expected that this effect will be revisited in the future. 

Order respecting Communication: section 225 of the Family Law Act

If the court is of the view that the court must intervene, but that the facts do not require a Protection Order, then the court will commonly made an order restricting communications. This means that, for example, the court will restrict the parties from communicating about any matters apart from the children, and that the parties will only be permitted by email. 

A breach of this order will not result in a criminal charge, however it can be dealt with by other remedies.