Restraining Order in Family Law: What is it, and how to get it?

June 13, 2016

By: Jeff Jiehui Li and Ashley Iyathurai

Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff Li or a family lawyer if you are concerned about your family law issues.

 

When a couple’s relationship deteriorates, sometimes a restraining order will be necessary to protect a partner’s personal safety or property interests. The Family Law Act in Ontario (R.S.O. 1990, c. F.3, as amended; sometimes referred to as the “Act” hereinafter) contemplates two main types of restraining orders: one for personal safety, and one relating to property claims.

Restraining Order for Personal Safety or Wellness

Spouses may seek a restraining order where they are in fear of their safety, or the safety of any children in their lawful custody, pursuant to section 46 of the Family Law Act. Section 35 of the Children’s Law Reform Act is another venue an applicant may seek such an order.

The relief this type of restraining order provides is fairly wide in scope. It can restrain the respondent from

(a) directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody;

(b) from coming within a specified distance of one or more locations; and

(c) any other acts.

Of course, the order may also specify exceptions. For example, when the respondent needs to visit the children, picking up or dropping off children at the applicant’s residence may be allowed, depending on the facts of each case.

Once issued, this type of restraining order will be registered in the database of Canadian Police Information Centre. Although this type of restraining order is civil in nature, breach of it can have criminal consequence. In extreme cases, a person violating an order may be imprisoned.

How to get it

An applicant must make a family law application for such a restraining order. When his/her life or safety is in danger, he/she should call 911 or contact a local police branch immediately. Sometimes an urgent ex parte motion to the family law court can also be made.

The applicant for this type of restraining order must provide reasonable grounds on which he or she has such a fear. The person against whom such an order is made, or the respondent, must be a spouse or former spouse of the applicant, or a person who is cohabiting or has cohabited with the applicant for any period of time.

The text of section 46 does not outline any particular factors that must be present in order for the court to grant a restraining order. Rather, the courts will look to the particular facts in order to ascertain whether there is any basis for granting a restraining order.

In order to obtain a restraining order, the Court must be satisfied that there are reasonable grounds for the applicant to fear of his/her safety or the safety of his/her child. This fear need not be limited to only one’s physical safety. A party can also seek a restraining order where the party is in fear of his/her psychological safety as well.

In Fuda v Fuda, the Court noted that the standard for a restraining order does not require that the Respondent actually committed an act. If the applicant has a legitimate and reasonable fear that such acts may be committed, this is sufficient.

In Khara v McManus, the Court noted that the Applicant’s fears can be personal or subjective in nature, but they must be tied to the Respondent’s actions or conduct. The Court should be able to ascertain a connection between the Respondent’s conduct, and the Applicant’s fears.

Restraining Order Related to Property

Separating spouses are often concerned about the possibility that their partners or former partners may deplete their assets or other property. Under sections 12 and 40 of the Family Law Act, the court has the jurisdiction to grant a restraining order in order to protect a spouse’s property interest.

The rationale is to ensure that if there is an equalization payment owing to a spouse, there is sufficient property available in order to make that payment. In issuing a restraining order, the Court noted in Lasch v Lasch that restraining orders should be narrow in nature and “restricted to specific assets.”

Both sections 12 and 40 utilize the same approach. The first step is to consider whether there is a real risk that the equalization claim may fail if there is no restraining order in place.

The valuation date is the date at which the parties separated. By the time the parties reach trial or a settlement on their property division however, it can be months after their separation. As a result, it is important to ensure that there are appropriate assets available in order to satisfy the equalization payment.

While section 12 of the Act grants the Court authority to make a restraining order, this is largely a discretionary remedy. Bronfman v Bronfman identifies some of the applicable factors that the Court will consider before granting a restraining order under section 12. The Court will consider how likely it is that the applicant will receive an equalization payment, and what effect, granting, or denying, the order will have on both the parties. The Court will also look at how likely it is that the assets might be depleted prior to trial.

How to get it

Again, this type of order must be made with a family law application. The party seeking the restraining order has the onus to establish that he or she is likely going to receive an equalization payment that is equal to the value of the assets being addressed in the restraining order. Where the parties have not determined the equalization payment, or to whom it is owing, or what the quantum is, the party seeking the restraining order will have a harder time obtaining an order.

The Court will also consider other factors such as the availability of other assets from which any equalization payment owing can be paid, and the party’s conduct in dealing with his/her finances. For instance, was the party being financial irresponsible or attempting to deplete his/her assets?

The nature of a restraining order can vary. Often, a restraining order will seek to oversee a spouse’s financial conduct in so far as it takes place outside the ordinary course of business.

If you believe a restraining order is appropriate in your situation, you should consult with an experienced family law lawyer to decide what should be done.

 

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