The wife's behaviour did not align with someone fearing for their safety: court
The BC Supreme Court has dismissed an application for a protection order under the Family Law Act (FLA) brought by the wife for herself and her child against the husband.
The couple, who married in November 2010 and separated in April 2023, have been embroiled in a dispute following allegations of physical and sexual abuse made by the claimant wife against the respondent husband. The claimant detailed a harrowing account of abuse spanning five years, including forced sexual intercourse and physical violence, particularly in the context of disagreements over having more children. Despite these allegations, there were no claims of abuse towards the child.
The wife’s application for a temporary protection order was initially granted on an ex parte basis on January 3, with the condition that it would expire on January 23 unless renewed by the court.
The court’s analysis in S.K. v S.U.K, 2024 BCSC 168 focused on the definition of family violence as outlined in the FLA and the requirement for evidence that violence is likely to occur in the future. The decision acknowledged the challenges in assessing credibility and truth in cases where evidence is primarily submitted through affidavits, lacking the depth of oral testimony and cross-examination.
Despite the serious nature of the allegations, the court found inconsistencies in the claimant's actions and evidence that cast doubt on the credibility of her claims. The court noted that the claimant's behaviour, including arranging for the respondent to pick up their child from activities despite the protective order, did not align with someone fearing for their safety and that of their child.
As a result, the court concluded that the claimant had not met the burden of proof required to establish that family violence was likely to occur, leading to dismissing the application for renewal of the protection order.
While the application for a protection order was dismissed, the court recognized the need to minimize conflict between the parties. To this end, the court ordered that the respondent is prohibited from attending the former family residence, except under specific conditions, such as retrieving personal belongings in the presence of a police officer or agreed third party and picking up or returning the child for parenting time, without entering the residence.
