Unfortunately this is not an uncommon statement heard by many family lawyers. Both men and women are forced to stay in an unhealthy and abusive relationship because they fear what will happen to them or their children if they attempt to leave. What are your legal options in these circumstances and what can a lawyer do for you?**
In the case of M.C.C v M.C.R.C 2019 BCSC 380, the wife commenced a family law action and brought on an ex parte application (application made to the court without notifying the other party) seeking protection and other orders because she feared the husbands response to learning that she wanted a divorce. The parties had two children.
Over the last 20 years of the relationship, the husband had engaged in a pattern of psychological and emotional abuse, showing a pattern of coercive and controlling behavior directed at the wife, and the children. The wife had been forbidden from having private email or Facebook accounts, from having her own credit card and was warned there would be consequences if she left the house to go to places like the mall, motels or family events. She was isolated from friends and family, prevented from accessing her own paychecks and had been monitored by the husband using tracking and video devices.
The judge found sufficient evidence of family violence and determined that the wife and children were at risk family members. The court made the following orders:
- A Protection Order pursuant to Section 183 of the Family Law Act restraining the husband from attending at the former family residence.
- A Protection Order pursuant to Section 183 of the Family Law Act restraining the husband from following (both physically and electronically) the wife.
- A Protection Order pursuant to Section 183 of the Family Law Act restraining the husband, from directly or indirectly communicating with the wife except through counsel on matters relating to this family law proceeding and on urgent matters relating to the Children.
- An Order that any peace officer, including any R.C.M.P. officer, having jurisdiction in the Province of British Columbia who is provided with a copy of a protection order from this Court be directed to remove the husband from the Former Family Residence.
- An Order pursuant to Section 90 of the Family Law Act, that the wife shall forthwith have exclusive occupancy of the Former Family Residence.
- An Order pursuant to Section 225 of the Family Law Act that the husband will not speak disparagingly about the wife to the children or in the presence of the children, or involve the children in these proceedings.
What does this all mean?
“Family violence” includes physical, sexual, emotional or psychological abuse, following or stalking, damaging property or exposing the children to family violence.
“At risk family member” is defined to mean a person whose safety and security is or is likely at risk from family violence carried out by a family member.
Protection orders usually have a list of conditions set by the judge that the person must follow, in order to protect the person who applies for that order (usually, for example, that the person not have contact with the person being protected). If your partner breaches a condition of the protection order, it is a criminal offence to which they could be convicted and face serious consequences for. Under the protection orders awarded by the court above, if the husband was found to be at the house, following the wife or speaking to the wife in any manner, other than through counsel, the police could be called and he could be arrested.
The good news for many unable to afford the cost of a lawyer is that applying for protection orders within the BC Provincial Court is free. However, often protection order applications are contested and competent legal advice increases your chances of success. Despite the definition of “family violence” being broad, courts are aware that these orders are a blunt tool and are careful on which applications these orders are to be granted. Detailed attention to the application materials is often necessary.
The justice system employs a range of responses where a party feels their safety is at risk and your options are not simply limited to protection orders. For example, if the person for whom you seek protection from is not a family member (partner, parent, or relative) then you can seek a peace bond (made under the Criminal Code) which protects you from anyone. Again, a lawyer is not required to apply for a peace bond and there are no application fees; simply call the police and explain you require a peace bond, and why. In the alternative, if you feel a family member’s behavior is out of line, but does not rise to a level of requiring a protection order or peace bond, you can also apply to the court for a conduct order. This is an order that the family member must do or not do certain things. For example, the court may set conditions on communications between you and your spouse, such that communication will only be done by text, or by email.
You do not have to stay with a spouse with is abusive to you or your children. You do have options available to you if you want to leave your spouse but feel that your safety may be threatened. Reach out to community resources or lawyers for the assistance you require to transition through this difficult time.
**Above any family law claims you may or may not have, your top priority should always be your safety. If you feel an immediate threat to your life or safety, call the police, find a shelter or leave the house to stay at a friend or relatives. Transitions homes allow those requiring protection to stay for up to 20 days, and the BC Housing website (https://www.bchousing.org/housing-assistance/women-fleeing-violence/transition-houses-safe-homes) has a list of contacts for safe homes and transition homes throughout BC. Be sure to have safety plan in place prior to leaving your spouse if you feel it is required in your particular circumstances.
Julia Chalkley is a family law lawyer and estate lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Julia. She can also be reached at [email protected] or 250-979-2532.