In Ontario, a restraining order is a court-sanctioned order that prevents an individual from doing something, typically communicating with another person (or persons). Courts will only grant such an order if it is demonstrated that there is a reasonable danger that one spouse will “molest, annoy or harass” the other spouse, or the parties’ child(ren). When determining whether an individual has been molested, annoyed or harassed, the courts look to the unique facts and circumstances surrounding each case, rather than applying a blanket test or set of criteria to all situations.
The Family Law Act is the relevant piece of legislation in Ontario that provides the Court with the power to protect the spouse and children of a particular individual with a restraining order, despite whether the incident is involved with divorce proceedings. Restraining orders may be obtained under Section 46 of this act. However, such orders will only apply to a spouse, former spouse or same-sex partner and the children of that spouse or partner. Additionally, because restraining orders concerning children may hinder child visitation or child custody, the courts will very carefully examine whether there truly is a danger to the child of being molested, annoyed, or harassed. Restraining orders for parents, siblings, friends or neighbors of a spouse do not fall within the jurisdiction of the Family Law Act and, as such, these types of relief must be sought under a different statute or common law principle.
A non-depletion order is another type of restraining order permitted under the Family Law Act . A non-depletion order may be requested if the spouses are facing disagreements concerning property division. Non-depletion orders are intended to protect a spouse’s entitlement to marital property by limiting the other spouse’s right to sell, encumber or otherwise dispose of the property. A spouse may request a non-depletion order if he or she is concerned that the other spouse may dispose of the property in order to defeat their former spouse’s claim to a share in the value of the this property via the Equalization of Net Family Property. This type of relief is dealt with in section 12 of the Family Law Act , permitting the court to make such an order if it considers the said order necessary for the protection of the other spouse’s interest in marital property. As such, the spouse requesting the order must present to the court some evidence demonstrating the likelihood that the property in question will be dissipated, disposed of, or encumbered if such an order is not granted.
A restraining order should only be sought in situations where an individual or his or her children are being harassed, molested or annoyed by a spouse or ex-spouse or where that individual perceives a real danger of such behavior taking place if a restraining Order is not granted. Once a restraining order is issued, the spouse or ex-spouse will be prohibited from speaking to or otherwise contacting that individual. If he or she does contact that person, he or she can be reported to the local police, arrested, and/or have steep fines issued. However, once a restraining order has been placed against someone, the person seeking the order must not communicate with him or her at all. If such a voluntary communication does occur, the courts will likely not enforce the order if it is later violated. Litigants should also bear in mind that restraining orders can be difficult to change once they have been made. As restraining orders are dealt with under the Family Law Act , they can be incorporated into a spouse’s Application to an Ontario Family Court.
If a person violates a restraining order, steep consequences may be imposed, including fines and possible jail time. First time violators face the possibility of a $5,000 penalty and up to three months in jail. Subsequent violations carry up to a $10,000 fine and up to two years in jail. Accordingly, if you have a restraining order against you that you feel is unfair, do not violate the order. Rather, you should attempt to have the order lifted through the court system.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer