Served With a Without-Notice Protection Order in BC: What Now?

Being handed a protection order you did not know was coming is a shock. A judge has made orders about where you can go and who you can contact, often without hearing from you at all.

The law allows that, but it also gives you a way to be heard. The key is to comply fully while you take the proper steps to challenge or change the order.

Why the order was made without you

Under Part 9 of the Family Law Act, a court can make a protection order against a family member if it decides that family violence is likely to occur and another family member is at risk (s 183(2)). An application for a protection order may be made without notice to the person it is aimed at (s 186(1)). That is deliberate: the law assumes that warning the other person could, in some cases, increase the danger.

The trade-off is that you have a right to come back to court. If an order was made without notice, you can apply to have it set aside, or to have it changed or ended (s 186(2)). The judge who made it heard only one side; your application is your chance to put the rest of the evidence in front of the court.

What a protection order can require

The terms vary, so read every line of your order. Under s 183(3), an order can, among other things:

• stop you from communicating with or contacting the protected person or another named person, directly or indirectly;
• keep you away from their home, work, school or other places they regularly attend, even if you own the place or have a right to be there;
• stop you from following them;
• stop you from having weapons, firearms or other specified objects, or the licences and certificates for them;
• direct police to remove you from a residence, to accompany you to collect belongings, or to seize weapons or firearms;
• require you to report to the court or a named person.

Unless the court says otherwise, a protection order expires one year after it is made (s 183(4)).

Comply from the moment you know about it

This point is easy to get wrong. A police officer who has reasonable and probable grounds to believe you have breached a protection order can act to enforce it whether or not there is proof that you were served (s 188(2)). In other words, once you know an order exists, assume it applies to you.

The Family Law Act says a protection order is not enforced through other Family Law Act orders or under the Offence Act (s 188(1)). Instead, breaches are generally dealt with through the criminal law. The Criminal Code makes it an offence to disobey a lawful court order without lawful excuse, punishable on summary conviction or as an indictable offence carrying up to two years in prison (s 127).

Two practical points follow:

• The protected person cannot waive the order. If they call, text or invite you over, the order still binds you. Only a court can change it.
• Indirect contact counts. Messages passed through friends, relatives or social media can breach a no-contact term.

Firearms and weapons

If your order restricts weapons or firearms, follow it exactly, including any direction to hand items to police. Part 9 uses the Criminal Code meanings of "firearm" and "weapon" (s 182), and an order can cover the licences and registration documents as well as the items themselves (s 183(3)(a)). If you hold firearms for work or sport, get advice quickly about how to comply.

How to apply to set aside or change the order

You do not have to wait for the order to expire. The court can shorten it, extend it, otherwise change it, or terminate it (s 187(1)). The application must be made before the order expires (s 187(2)).

In Provincial Court, an application to change or terminate a protection order is made in Form 12 with supporting evidence (Provincial Court Family Rules, r 68). On notice, it must be personally served by an adult who is not a party at least 7 days before the court date, with a certificate of service (r 68(2) and (3)). Evidence can be given orally on oath or affirmation, or by affidavit (r 69). If a judge changes any term, the old order is terminated and a new one made (r 71). If your order came from the Supreme Court, that court's family rules govern the application.

If you are also dealing with other family court documents, our guide to being served with family court papers in BC covers deadlines for replying.

What the court will look at

The court must consider risk factors set out in s 184(1), including any history of family violence, whether it is repetitive or escalating, any pattern of coercive and controlling behaviour, a recent separation, and the protected person's own perception of risk. If both people are seeking orders against each other, the court considers whether an order should be made against one person only, and the person who started a particular incident is not necessarily the one an order should be made against (s 184(2) and (3)). Where children are involved, the court also considers their exposure to family violence (s 185). Our article on coercive control in BC family law explains how patterns of behaviour are assessed.

Evidence that answers these factors directly, such as messages, timelines and witnesses, tends to matter more than general denials.

How it affects parenting time and other orders

If a protection order conflicts with another Family Law Act order, such as a parenting order, the other order is suspended to the extent of the conflict until one of them is varied or the protection order ends (s 189). That can mean parenting time stops in practice until the court sorts out the conflict. Criminal charges, if any, are a separate process, and a protection order can be made whether or not charges have been laid (s 184(4)(d)).

Served with a protection order? Get advice before you respond

Our family lawyers can explain exactly what your order requires, help you comply in the meantime, and prepare and present an application to set aside, change or end it.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.