Applying for a BC Protection Order Without Notice to Your Ex

If you are afraid of how your ex will react to learning that you are going to court, the idea of asking for protection without warning them first can be a real relief. British Columbia's Family Law Act allows for this.

This article explains what applying without notice means, what the court weighs, who the order can be made against, and what the other person can do once they find out.

This article covers the law of British Columbia.

What without notice means

An application for a protection order may be made without notice to the other person. In plain words, you can ask the court for the order before your ex has been told about the application or has a chance to respond.

You do not need to have another family case underway first. The application can be made by the at-risk family member, by another person on their behalf, or by the court on its own initiative, and no other family proceeding is required first.

What the court has to decide

A court may make a protection order against a family member if it 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 at risk from family violence.

In deciding, the court must consider, among other things, the following:

• the respondent's history of violence and whether the violence is repetitive or escalating
• coercive or controlling behaviour
• the state of the relationship, including a recent separation
• risk factors such as substance abuse, weapons or mental health
• your own perception of risk and your vulnerability

The court may make an order even if there are prior orders, if the other person is temporarily absent, if criminal charges are possible, or if you have returned to live with the person. Where a child is the at-risk family member, the court must also consider whether the child may be exposed to family violence without an order.

Who the order can be made against

A Part 9 protection order can only be made against a family member. That includes a spouse or former spouse, a person who lives or has lived in a marriage-like relationship with you, and a parent or guardian of your child. A person is a spouse if married, or if they have lived in a marriage-like relationship for a continuous period of at least 2 years or (except in Parts 5 and 6) have a child with the other person.

Dating partners, co-workers or strangers who are not a family member under the Act cannot be the subject of a Family Law Act protection order, but a criminal peace bond under Criminal Code section 810 can be used against anyone.

What happens after the order is made

If an order is made without notice, the person it is made against can apply to the court to set it aside, or to change or terminate it under section 187. That is the follow-up step. How quickly a hearing is scheduled and how it runs depends on the court and the registry, so ask the court staff for the practical details.

The order itself can include terms restraining contact and communication, restricting attendance at specified places, and directing police to remove, accompany or seize items such as weapons. Unless the court provides otherwise, it expires one year after it is made.

Either court can hear these matters: the Supreme Court and the Provincial Court both have jurisdiction under the Act. The Provincial Court can make a Part 9 order restricting access to a residence to protect a family member's safety. For Supreme Court applications, Form F54 is the protection order form.

What to do next

• Write down incidents with dates, since the court considers history, escalation and controlling behaviour.
• Decide which court suits you and ask its registry how to apply without notice.
• Ask about fees: Supreme Court fees can be waived if you cannot afford them.
• Plan for the time after the order is made, including where you will stay and who will know about it.
• Speak with a lawyer about parenting or property issues, which an order may affect.

If you are in immediate danger, contact emergency services right away, before you start any court application. How the rest of this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions