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. 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.)).
Should the court consider it appropriate, they make a restraining order with one or more of the following provisions:
- 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;
- Restraining the person from coming within a specific distance of one or more locations;
- Specifying an exception(s) to the provisions outlined above; and/or,
- 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 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.
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Contact Krol & Krol at 905.707.3370.
