Domestic Violence and Restraining Orders in the Context of Family Law

Domestic violence is a serious issue that can have devastating consequences for victims and their families. In Ontario, domestic assault cases frequently involve legal orders restricting contact between the accused and the victim. These restraining orders protect victims and control the accused’s behavior throughout the legal proceedings.

Ontario’s family law framework identifies the gravity of domestic violence. It provides legal tools for victims’ safety. Understanding these orders is essential for both the parties bringing these charges and those facing them in the domestic assault system in Ontario’s legal system. 

Continue reading to get a better understanding of restraining orders in terms of domestic violence in Ontario.

Understanding Domestic Violence and Restraining Orders

• Domestic Violence: The term “Domestic Violence” describes an abusive conduct pattern in an intimate relationship. It could be physical, psychological, sexual, emotional, or financial. It’s important to understand that various relationships experience domestic violence, including current or former spouses, common-law partners, and dating partners. 
• Restraining Order: If you face threats or harm, a restraining order can be issued for your protection. It is a legal document, issued by a judge which clearly outlines specific actions, the other person is prohibited from doing. These orders are typically employed in circumstances involving domestic violence, stalking, or harassment. The objective is to provide security for the protected individual by restricting any form of contact. 

Restraining Orders in Ontario Family Law

Each state differs in how they apply the restraining order in different situations. In the context of family law, restraining orders are primarily governed by two statutes:

The Family Law Act

Section 46 of the Family Law Act (FLA) allows the court to issue a restraining order to protect the applicant (the person seeking the order) or a child in their care in the form of violence or threats of violence. 

The Children’s Law Reform Act

Section 35 of the Children’s Law Reform Act (CLRA) grants similar power to the court to issue a restraining order to protect a child from abuse or neglect.

Types of Restraining Order

Restraining orders can be modified and adjusted according to the specific needs of applicants. The possible conditions of restraining orders in Ontario may include:

• No-Contact Orders: These orders are issued when the applicant means to cut off any communication with the complainant completely. This includes phone calls, texts, emails, or even showing up at their place.
• Conditional Contact: Conditional contact, per FLA in Ontario, allows for limited communication under certain conditions. For instance, if you have children together, you might be allowed contact to discuss custody arrangements, but only through a lawyer. 
• Location Restrictions: This prohibits you from going to certain places where the complainant may be found, such as their home, workplace, or even the child’s school.
• Prohibition From Possession of Fire-Arm: This prohibits the respondent from owning or possessing firearms, due to the threat he poses to the applicant.
• Stay-Away Order: Stay-away order is a safety zone around the applicant as it prohibits the respondent from getting closer than a specific distance to places where the applicant spends time.

To obtain a restraining order under the FLA or CLRA, the applicant must demonstrate “reasonable grounds to fear for their safety or the safety of their child” in their care. The court considers the following factors:

• History of Violence: This includes any past incident of physical, sexual, emotional, or psychological abuse reported by the applicant.
• Threats of Violence: Threats of violence, even if they’ve not been carried out yet, are an evident red flag for the court. These threats can be a strong indicator of future danger.
• Pattern of Coercive Control: Coercive control involves tactics used by the respondent to control the applicant’s behavior and isolate them from support systems.

Court Cases Where Restraining Order Was Issued

In the following case examples, Ontario Family Law issued a restraining order as per demand.

In R.S v. M.S.M

In the R.S. v M.S.M case, the mother requested a restraining order against the father due to her worries about his unpredictable attitude and threats. The court granted her the restraining order, recognizing that threats and the father’s potential threat for future violence, can create a reasonable fear of harm, even without prior physical violence. This concept is often referred to as “protective orders based on fear of future harm”.

In A.C. v. M.C.

This case concerned a couple with a previous history of physical and verbal abuse hence it highlights how emotional abuse can be a valid reason for obtaining a restraining order in the context of fearing for safety. Emotional abuse encompassed a wide range of unsettling behaviors such as belittling, humiliation, intimidation, or isolation.

The court increasingly acknowledged the negative impact of emotional abuse and its potential to escalate into physical violence and hence granted the restraining order.

Obtaining a Restraining Order

In Ontario, if you fear for your safety due to your partner, there are two primary routes to acquiring a restraining order within the family law system.

• Independent Application: This approach involves filing a separate court application solely focused on obtaining a restraining order. It’s a distinct legal process dedicated to your safety concerns.
• Motion Brought Within Ongoing Family Law Proceedings: This option allows you to request a restraining order alongside other family law matters you’re already addressing in court, such as separation, child custody, or child support.

Necessary Documents

In an urgent situation, where a restraining order is needed right away and there’s not much time to get a date for the court hearing, you will need to file these additional forms:

• Form 14: Notice of Motion: In this Form 14 you mention in detail to the court what you’re requesting, i.e. a restraining order. 

• Form 14A: Affidavit (General): In Form 14A you explain why you fear for your safety, and your children’s (if applicable). You mention any history of violence in this section.
• Form 14C: Confirmation: Form 14C is a confirmatory form where you inform the court that you’re ready to proceed with the hearing for the order. 

Usually, both people involved have to file this form to confirm their availability. However, in the case of restraining orders (motion without notice), this is different. Here the other person won’t be aware that you’re seeking the order and won’t be present in court to respond on the hearing date.  

Safety Plan in Case of Emergencies

In case of emergencies, these are the key components of a safety plan:

• Build a Support Network: Build a network of trusted family, friends, and local services for emotional support, shelter, and assistance.  
• Emergency Escape Plan: Having a well-thought-out, workable strategy in place is essential to escaping a dangerous situation swiftly and securely. This includes planning escape routes and packing a bag with necessities (such as clothing, critical documents, and required medication). 
• Communication Strategy: It’s important to use secure and private communication channels. This includes having access to a phone with important numbers pre-saved, to dial in cases of emergency.
• Financial Independence: Financial security is key. Save money for your future plans or open a separate bank account to ensure you have resources to cover your immediate needs after leaving.

Domestic violence is a complex legal issue, but Ontario’s family law system provides tools like restraining orders to protect victims and their families. Nussbaum Law can guide you through the legal process to obtain a restraining order and ensure your safety. Contact us today and set up a free consultation with one of our experienced lawyers.