Under section 183 of the Family Law Act, a third party may apply to the courts for a protection order on behalf of an at risk person who is at risk of experiencing family violence from a family member. For example, a teacher could apply for a protection order on behalf of one of their students if that student was at risk of experiencing violence from his or her family member.
In December, 2014, one of our clients became subject to a protection order. The mother of our client’s girlfriend disapproved of her daughter’s same-sex relationship with our client, and sought to separate the couple using a protection order. From a judicial standpoint, the bar to meet to obtain a protection order is extremely low. In this case, the mother sought a protection order for her 18 year old daughter, on the grounds that her relationship with our client was not in her best interests, and involved coercion and pressure. A protection order was granted, restraining our client from contacting or communicating with her girlfriend.
In January, 2015, James Stevenson appeared on behalf of our client, and argued that the protection order ought to be set aside on the grounds that our client did not meet the definition of a ‘family member’ as described under section 1 of the Family Law Act. Specifically, a family member includes a spouse or former spouse, as well as a person with whom the at-risk person is living. In this case, the couple in question did not live together and were not married. The court easily concluded that the couple were not ‘family members’ as defined in the Act and that the court had no jurisdiction to issue a protection order in these circumstances. Master McNaughton subsequently set aside the protection order.
Additionally, Master McNaughton found that, while there were grounds for the awarding of special costs against the mother on the grounds of material non-disclosure, such an order would not be appropriate as it would only serve to exacerbate the ill-will between the Claimant and the Respondent. That being said, costs were awarded against the Claimant, which covered a substantial portion of our client’s legal fees and underscored that the inappropriate application for a protection order ought not to be tolerated.
We are very happy to have been able to re-unite this couple.
For the full decisions, please click here: J.Z. v.L.H.C., 2015 BCSC 97.
If you find yourself the subject of a court order that you believe may be inappropriately motivated, seek legal assistance. The lawyers at Henderson and Lee Law Corporation can help you to show the court that, just as in this case, you should never have been the subject of the order.