Getting an Order to Keep Your Ex Out of the Family Home in BC

If you feel unsafe in your own home, it can be frightening to learn that the other person may have a legal right to be there. British Columbia's Family Law Act has two main routes that can keep someone out of a home: a protection order and an exclusive occupation order.

They work differently, are available in different courts and suit different people. This article explains the difference in plain terms. It is general information, so talk to a lawyer about your own circumstances.

This article covers the law of British Columbia.

Route one: a protection order

A court may make a protection order against a family member if it decides that family violence is likely to occur and the other person 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.

The order can restrain contact and communication, restrict attendance at specified places and include other terms the court considers necessary. The Provincial Court can also make a Part 9 order restricting access to a residence to protect a family member's safety.

A protection order is only made against a family member. Dating partners, co-workers and strangers who are not a family member under the Act cannot get one, although a criminal peace bond can be used against anyone.

Route two: exclusive occupation of the family home

Under section 90, the Supreme Court may grant a spouse exclusive occupation of the family residence for a specified period. The family residence is one owned or leased by one spouse or both that is the spouses' ordinary place of residence. The order does not give the spouse a proprietary interest in the home.

This route applies to spouses, including married spouses and those in a qualifying marriage-like relationship, and only in the Supreme Court. A spouse includes someone who has lived in a marriage-like relationship for a continuous period of at least 2 years. How this applies if the home is owned by one person or rented is a question to confirm with a lawyer.

What the court looks at

For a protection order, the court considers matters including the respondent's history of violence, whether violence is repetitive or escalating, coercive or controlling behaviour, and the state of the relationship, including recent separation. It also looks at risk factors such as substance abuse, weapons and mental health, your own perception of risk and your vulnerability.

The court may make the order even if the other person is temporarily absent, criminal charges are possible, other orders exist, or the applicant has gone back to live with the respondent. If a child is at risk, the court must also consider whether the child may be exposed to family violence without an order.

Process, enforcement and cost

An application can be made without notice to the other person. The at-risk person can apply, someone can apply on their behalf, and no other family proceeding is needed first. If the order is made without notice, the other person can apply to set it aside, change it or end it.

If police have reasonable and probable grounds to believe a term was breached, they may act to enforce it, whether or not there is proof it was served. Disobeying a court order can also be an offence under Criminal Code section 127(1).

Legal Aid BC's guide says there is no court fee to apply for a protection order in Provincial Court. A Supreme Court filing carries a fee that can be waived if you cannot afford it. Confirm the current fee rules with the court registry.

What to do next

• If you are in immediate danger, contact emergency services first.
• Write down incidents with dates, and keep messages, photos and records.
• Gather documents showing who owns or rents the home and who lives there.
• Decide with a lawyer whether a protection order, a section 90 application or both fit your situation.
• Ask the court registry which forms and court to use, including whether a fee waiver applies.

Frequently asked questions