When Can a Restraining Order Protect a Party in Family Proceedings?
Written on behalf of Shariff & Associates
In the family law context, a restraining order is a court order that can prohibit a party from communicating with the applicant, contacting the applicant or a child in the applicant’s care, or attending a specific location. An individual applying for a restraining order must have reasonable grounds to fear for their safety or the safety of their children.
The objective of a restraining order is to provide the applicant with some degree of security in cases of abuse or harassment. However, restraining orders are serious orders and will only be granted in limited circumstances. Since a restraining order can have serious implications, courts may look to a no-contact order as an alternative means of protection, if deemed appropriate in the circumstances.
Restraining Order Justified to Prevent Harassment
A restraining order is available under section 46 of the Family Law Act (the “FLA”) or section 35 of the Children’s Law Reform Act (the “CLRA”) if the “applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.” The person requesting the order has the onus of showing that it is required.
In R.K.K. v. J.L.M. , the Ontario Court of Justice explained that it is not necessary for a respondent to “have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed.” However, the Court also noted that a restraining order cannot “forestall every perceived fear of insult or possible harm, without compelling facts.”
Courts have also indicated that a restraining order could be justified where there has been a lengthy period of harassment or irresponsible behaviour that harasses or distresses a party, as was the case in F.K. v. M.C.. In these cases, there should be some indication of persistent conduct that could be expected to continue without the Court’s intervention.
Court Requires a Legitimate Fear for the Applicant’s Safety
In the case of Daleman v. Daleman, a mother sought a restraining order due to the father’s history of abuse towards her and their children throughout their relationship. In her testimony, the mother stated that she continued to feel intimidated by the father even after their separation. Justice Desormeau recognized that the Court was required to assess the mother’s subjective fear, however, an order could only be granted if that fear had a legitimate basis, such as a legitimate fear for physical or psychological safety. In its analysis, the Court also considered the father’s conduct since the separation.
The mother’s request for the order was grounded in a belief that the father sought revenge for her leaving him and that he instigated meritless court actions against her to humiliate her. However, apart from this, there was little evidence of any harassment or threats by the father since separation. Although it was not determinative, the Court also noted that there had been no police involvement to date. Moreover, Justice Desormeau noted that imposing a restraining order should not be done lightly. This is because a restraining order involves a liberty component and the subject of a restraining order faces the potential of imprisonment if the order is breached. Finding that there was no reason for the parties to have further interaction with each other, the Court held that there was no legitimate basis to grant the order.
Court Considers Circumstances in Light of Litigation and Relationship Between the Parties
In Sanvictores v. Sanvictores, the applicant father brought an urgent motion for a restraining order under section 35(1) of the CLRA to prevent the respondent mother from harassing or communicating with the applicant and prohibiting her from attending the children’s school. Justice Faieta of the Superior Court of Justice acknowledged the lengthy history preceding this motion involving the respondent’s repeated and deliberate non-compliance with previous court orders.
This motion was precipitated when the father dropped the children off at their school. The respondent removed the children from the school lobby, took them to her car, and drove away. Other children witnessed the incident and at the request of school staff, the applicant called the police requesting that the children be returned to him. The school principal informed the applicant that she had spoken to the respondent and the respondent had threatened to return to the school. The principal also revealed that police had cautioned the respondent not to attend at the school again. Nevertheless, the respondent harassed the school via telephone calls. These actions led the school to adopt a safety plan with respect to the parties’ children.
Justice Faieta was satisfied that the request for a restraining order was an urgent matter and required relief. The respondent’s actions in removing the children from school was a legitimate basis for the applicant’s subjective fear for the safety of the children. Of particular note was the fact that the respondent forcibly removed the children and continued to contact the school regarding the children even when she was directed not to, raising concern for the children’s physical and psychological safety. Moreover, when considered in the context of the litigation, there was a legitimate basis for the applicant’s fear for the children’s safety.
The Court ordered that the respondent was prohibited from coming within 150 meters of the children’s school. However, the Court adjourned the father’s motion for a restraining order pertaining to himself, as the urgency for that motion on an ex parte basis was not established.
No-Contact Order May be an Effective Alternative
Under the CLRA, when parenting issues arise in family law proceedings, a court may make an order limiting contact or communication between the parties or between a party and a child. Such an order may be an alternative to the use of a restraining order in certain circumstances.
In F.K. v. M.C., the Court considered whether there were legitimate grounds to grant a restraining order, and, if not, whether an order should be made under section 28(1)(c) of the CLRA to restrict contact and communication between the parties. The applicant mother made numerous allegations against the father, including that she was subject to domestic violence that was physical, financial, and emotional, which were established in an earlier child protection case. The father had also been convicted of breaching criminal court orders, including an order not to have contact with the mother. Justice Sherr noted that there had previously been a temporary order made under section 28 of the CLRA that prohibited the parties from contacting each other which the father had complied with. However, the Court was required to determine whether an order made under section 28 would be sufficient to protect the mother.
The Court found that a section 28 order was “not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain the father from harassing the mother to third parties.” In the Court’s view, the frequent court appearances in which the father’s behaviour and compliance was monitored was a strong protective factor. Additional factors considered by the Court included the fact that the domestic violence was long-standing, the mother was vulnerable, and the father took no responsibility for his behaviour and appeared angry with the mother, which increased the risk for further violence.
For all these reasons, the Court held that a section 28 order was insufficient to protect the mother. Instead, a restraining order was issued.
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