FAQ: Domestic Violence

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

Restraining orders

It is not uncommon for a spouse to seek a restraining order against the other upon the breakdown of their marriage. The Children’s Law Reform Act and the Family Law Act have been amended so as to accommodate those fearing for their children’s safety and even their own.

Subsection 35(1) of the Children’s Law Reform Act states:

  1. (1)  On application, the court may make an interim or final restraining order against any person 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. 2009, c. 11, s. 15.

Provisions of order

(2)  A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

  1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
  2. Restraining the respondent from coming within a specified distance of one or more locations.
  3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
  4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

Transition

(3)  This section, as it read on October 14, 2009, continues to apply to,

(a) any prosecution or other proceeding begun under this section before October 15, 2009; and

(b) any order made under this section that was in force on October 14, 2009. 2009, c. 11, s. 15; 2014, c. 7, Sched. 4, s. 1.

 

Subsection 46(1) of the Family Law Act states as follows:

  1. (1)  On application, the court may make an interim or final restraining order against a person described in subsection (2) 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. 2009, c. 11, s. 35.

Same

(2)  A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3)  A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

  1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
  2. Restraining the respondent from coming within a specified distance of one or more locations.
  3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
  4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

Transition

(4)  This section, as it read on October 14, 2009, continues to apply to,

(a) any prosecution or other proceeding begun under this section before October 15, 2009; and

(b) any order made under this section that was in force on October 14, 2009. 2009, c. 11, s. 35; 2014, c. 7, Sched. 9, s. 8.

To learn more about restraining orders as well as the services provided by Krol & Krol, call 905.707.3370 today.

My spouse is abusive, and I want to get a restraining order. How do I go about doing that?

If your spouse is abusive, it is imperative that you come up with a plan to protect both your well being and the well being of your children.

The legislation pertaining to restraining orders in family law matters is found in section 46 of the Family Law Act. This section is applicable to spouses and former spouses.

Section 46 of the Family Law Act permits the court to issue a restraining order against a spouse or a former spouse, preventing him or her from “molesting”, “annoying” or “harassing” the person asking for the order and his or her children.

Should the court consider it appropriate, they make a restraining order with one or more of the following provisions:

1. Restraining the individual, in whole or partly, from directly or indirectly contacting or communicating with the Applicant or a child in the Applicant’s lawful custody.

According to case law, “annoying” means conduct which a reasonably minded person would consider as disturbing or as a substantial source of anxiety/irritation. This section does not capture trivial annoyances (Sniderman v. Sniderman, [1981] O.J. No. 1119 (Ont. H.C.J.)).

2. Restraining the person from coming within a specific distance of one or more locations.

3. Specifying an exception(s) to the provisions outlined above.

4. Any other provisions that the court considers appropriate.

The court usually only grants restraining orders in the event that it is demonstrated that there is reason to believe that you, and/or your children are in danger. In order for a court to establish this basis for a restraining order, the judge will look at the unique facts and circumstances of every individual case.

If a restraining order is granted and the respondent contravenes the restraining order, the individual can be reported to the local police. This can result in either an arrest, and/or fines. Specifically, a spouse who is convicted of violating a restraining order under the Family Law Act may be liable for a fine of $5,000.00 and/or three months of imprisonment.

It is important to note that once the restraining order is granted, the individual who filed for the restraining order is also not allowed to attempt to communicate with the individual upon whom the restraining order applies. In the event that you do attempt to communicate with the individual, then it is likely that the courts will not enforce the order in the future, or that the order will be lifted and your credibility challenged.

For more information on the services provided by the team of lawyers at Krol & Krol, click here.

Contact Krol & Krol at 905.707.3370.

What are some of my options in a situation of domestic violence in my family law case?

In a family law case, any violence committed by a spouse against another spouse or against the children ought to be immediately reported to the police. The safety and well-being of the parties’ involved is paramount.

Restrictions can be put on the abuser’s conduct in the context of criminal proceedings.

Abuse of any threats may also be grounds for issuing a peace bond (also known as a recognizance). A peace bond or a recognizance is a court order that requires the defendant to keep the peace and be of good behaviour Conditions may be attached to ensure the good conduct of the defendant. For example, a peace bond may delineate that the defendant not possess any firearms or ammunition.

In addition, abuse by a partner may be the grounds for certain tort actions, like the tort action for assault, battery, intentional infliction of mental suffering.

These tort claims can be brought with the family law case. A separate action does not have to be started. In McLean v. Danicic (2009), 95 O.R. (3d) 570 (S.C.J.), tort damages were awarded for intentional infliction of mental suffering in the context of family law proceedings.

In this family law case, Harvison Young J. stated:

[84]   More generally, s. 21.9 of the Courts of Justice Act, R.S.O. 1990, c. C.43, grants a Family Court jurisdiction, with leave of the judge, to hear and adjudicate upon related matters. Thus, though not pleaded explicitly, I can award damages under the tort of intentional infliction of mental suffering and emotional distress as was done in MacKay v. Buelow, [1995] O.J. No. 867. Because the allegations of fact in the statement of claim provide the basis for finding the necessary elements of the tort, I can consider whether the tort was in fact made out even though the tort itself was not pleaded.

[88] An order will also issue restraining Mr. Danicic from harassing, molesting or annoying Ms. McLean or her counsel …

If, in fact, the abuser does not have any financial resources, one may able to get compensation from the Criminal Injuries Compensation Board.