December 16, 2016

How to Obtain Protection from an Abuser

Whether or not you choose to believe it, domestic violence is incredibly common.

Here are some statistics:

  1. In 2006, 12% of all criminal prosecutions in BC were domestic violence cases;
  2. Only 28% of victims of spousal violence will actually report these incidents to police;
  3. 30 to 40% of children who witness abuse on their mother will also experience physical abuse;
  4. Every year, an estimated 800,000 children witness a woman being abused;
  5. In 60% of cases where children are physically or sexually assaulted, the parents are the abusers; and
  6. 1/3 of all reported violent incidents committed against elderly adults were committed by a family member.

As these statistics suggest, in many instances the people who are supposed to be your ‘best friends’ are, instead, your ‘worst enemies’.

If you or a family member needs protection – even from another family member – what should do you?

Call the Police!

First and foremost, you should call police if you feel any threat to your safety.

The problem is that often, the people who call the police are not cooperative with police after they arrive.   As a result, criminal convictions against the abusers are difficult to get.

This is because when the primary and only witness in a domestic violence case does not want to give evidence in the trial, there can’t be a trial.  If the police did not see the abuse themselves, the Crown Prosecutor has no confirmation of abuse or who the abuser was.

If and when the victim reaches a point where they are truly prepared to take action, they can call the police and agree to press charges.

Obtain a Protection Order

If victims are afraid of ongoing abuse, they can also apply to court for a protection order.   On television, these are more commonly referred to as a ‘restraining order’.    A protection order sets out the terms of a required distance the abuser must keep from the victim.  This can include physical distance (i.e. the abuser may not come within x distance from the victim) but also in terms of communication, such as phone calls, emails, etc.

To obtain a protection order, you need to appear in court (either in Provincial or Supreme Court) and convince a judge of two things:

  1. You are a family member of the abuser, which includes a child, parent, or spouse or ex-spouse (of the abuser); and
  2. There is a risk that you will be hurt through continued exposure to and proximity with this person.

If you can convince of a judge of these two things, then you can get a protection order.

Convincing a judge that you are a family member is usually very easy: it is typically as simple as explaining that you are the ex-spouse, child, or parent of a violent person.   The next hurdle, though, isn’t quite as easy.

Show a History of Threats or Abuse

In order to convince a judge that you may be hurt through continued contact with the abuser, you need to describe the historical and ongoing threatening conduct of the abuser.   This includes past police incidents, past criminal convictions, past incidents of abuse, and past stalking behavior.  To demonstrate that this behaviour is a current threat, there should be some recent incidences.  .  If you haven’t been threatened or abused by someone in approximately one year, it isn’t as likely that a judge will grant the protection order (as the likelihood that you will be hurt isn’t as great).  But, of course, this depends entirely on the nature of your relationship and the abuse that you suffered during the relationship.

Log All Incidences

If you are currently being abused or threatened, ensure that you log/record all of the conduct of the other person.  Those details, dates, and events will be very important when you appear in front of a judge.

How Does a Protection Order Help?

The existence of a protection order will often dissuade the abuser from doing anything to violate it.  If they do make contact, the document can be shown to police, and the abuser will then be arrested. .

Imagine this: you get a protection order against your former spouse, which says that he/she cannot have any direct or indirect contact with you and that they cannot attend your work, school, or residence.  Now, let’s say that your ex-spouse attends at your home and wants to ‘work things out’ or let’s imagine that they send you multiple Facebook or text messages.

Without the order, your options are limited as without physical evidence of harm, the police can’t charge the abuser with a crime.  But with a protection order in place, such contact means a criminal activity has in fact taken place.  The police then have some ‘teeth’ to ensure that your abuser leaves you alone.   And, violating a protection order is no trivial matter – it is a criminal offence to violate a protection order.

Get Help Immediately

Here’s the bottom-line: if you are being abused, please get help immediately.  Contact your police department, your local YWCA, women’s shelter, or any other service that you choose.   If you want to gain longer term protection from the abuser, consider further means such as obtaining a protection order.  You don’t have to live with violence.  There are services and legal options available to you.

Jeff Zilkowsky is a family law lawyer with CBM Lawyers LLP. For more information on family law or protection orders specifically, he can be reached at 604-533-3821 or jzilkowsky@cbmlawyers.com

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.