If you are fearful that your spouse or former spouse or partner or former partner will harm you or your children, you may request the court to make a restraining order under Section 46 of the Family Law Act, R.S.O. 1990, c. F.3. It is a legally binding order to protect you and for the safety of your children for whom you have decision-making responsibility.
Who Can Get A Restraining Order?
This civil protection order only applies to your former spouse whom you married or with whom lived together for any period of time.
A Restraining Order may be made against a person other than the spouse of the applicant, in case that person is cohabiting with or has cohabited with the applicant.
The significance of time duration spent with the partner to acquire a restraining order at any moment is only conditioned to having lived for a certain period of time. Hence, if you have never lived with the person, you will not be able to obtain a restraining order against that person.
The Contents Of The Restraining Order
The restraining order embodies among other elements a list of conditions that the person, the order is directed to, must comply with. It can indicate that the person must not come to your home, your work or your children’s school or other places you often go. It can also order that the person you are threatened of, is not permitted to communicate with you or children, neither in person nor through the telephonic means.
Procedure
The applicant can either go to the family courthouse in the municipality where he/she or the other person lives. Or if the applicant fears for the safety of the child or children for whom they are given the decision-making responsibility, they can go to a family court in the municipality where the child or children live.
If you have not filed a complaint with the family court, you need to file an application. In most cases, you need to attend a case conference before you can ask the court to issue an order. However, if your case is urgent, you can file a motion for a restraining order immediately.
Bringing A Court Motion
If you are bringing a motion without notice to the other party, you have to satisfy the following requirement:
1) A lack of knowledge of the other party’s whereabouts;
2) An immediate danger that your children will be taken out of Ontario or that you or your children will be harmed; or
3) A notice in advance of the serious consequences.
If you are filing a motion to seek an order immediately, in your motion materials you will need to tell the judge what the urgency or hardship is (i.e., the reason that you are not supposed to wait several weeks to get the restraining order). The motion materials must be provided to the person against whom you are filing a claim.
Filing An Application
If the situations above do not apply to you, you have to file an application to start the process. You are required to complete the Application and a Canadian Police Information Centre (CPIC) Restraining Order Information Form, which is only accessible from the family court counter. The court clerk at the family court counter provides you with a first court date.
After the restraining order is granted, the information form will be sent to the police along with a copy of the restraining order.
If you bring a motion with notice or an application, then the court gives the other person an opportunity to respond to your request. You need to attend the court to describe to the court why a restraining order should be granted. The judge will decide whether or not to grant your request based on the evidence.
Ex-Parte Provisional Restraining Order
In case the motion was initiated by the applicant without giving notice to the other person, the judge will have to contemplate whether to grant a temporary restraining order without hearing the other party. If the order is allowed by the judge, both the parties are asked to come to the court to tell their side of the story. At that instant, the judge decides whether to continue the order.
What If The Person Disobeys The Order?
If the person disobeys the order, the police can arrest the person. Defying a Restraining Order is a criminal offence.
Make A safety plan
Whether or not a restraining order is granted, you need to make a safety plan for you and your children. A restraining order does not promise that the person will obey the order.
You do not need a family lawyer to get a restraining order, but having a lawyer is recommended in complicated cases and cases where there could be potential immigration consequences.
Our Skilled Lawyers Can Guide You
Ayaz Mehdi Professional Corporation is a full-service firm, based in Ontario, serving its clients by aptly handling all the litigation matters at reasonable prices. If you are looking for a lawyer to assist you with your family disputes, please contact one of our qualified family law lawyers.
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