Family Law disputes can turn contentious, and often bring out the worst of our emotions and behaviours. Normally these disputes can consist of petty behaviours and hurt feelings, but at their very worst they can also include threats and violence. Intimate partner violence is a serious issue in Canada, and it can be made that much worse when one feels that a relationship has ended unjustly.
The family law system recognizes this, and the Family Law Act as well as the Children’s Law Reform Act gives courts the power to issue restraining orders against an individual to protect their former partner and/or their children. These restraining orders, alternatively called protection orders, are legally binding. They can restrict how close a person can come to you physically, or the communication that they can have with you or with your children.
How do these restraining orders work? When may they be issued, and what types of orders are available? What happens if a person under an order is not compliant with the order, or what if you choose to violate the court’s restrictions voluntarily?
How do restraining orders work?
A restraining order is intended to limit the actions of your former spouse or partner against you or your children.
Courts can issue restraining orders under the Family Law Act and Children’s Law Reform Act, and in assessing a request for an Order they will examine all of the circumstances carefully.
Your former partner does not need to be charged with a crime for you to obtain a restraining order. The Courts will review your circumstances, and assess whether you have reasonable fear, based on your former partner’s conduct, that they are going to be a danger to yourself or your children.
There are different types of orders available depending on the circumstances:
Restraining Order – A restraining order can be issued for a determined length of time, or it may be issued permanently. This gives both parties the opportunity to speak before the court with regard to the order request, and ultimately the judge makes the decision over whether or not the order should be granted and for how long.
Urgent Restraining Order – In situations where there is an immediate threat, such as an immediate threat of violence, you may be eligible to receive an urgent restraining order. You (and your lawyer) will need to prove the need for urgency to the Court, and these orders are issued temporarily until a more permanent solution is in place.
Ex Parte Restraining Order – These are restraining orders issued without notice to the other party. This would mean that you and your former partner come into court at different times to discuss the merits of a lengthier restraining order. While courts are protected, this order may be appropriate if you have concerns about running into them in the hallway, parking lot, washroom, etc.
No Communication/Harassment Order – This is an order specifically designed to stop your former partner from communicating with you directly, and can be issued by the Court if they believe it necessary for your matter. All communication would then go through lawyers, instead of being direct between you and your former partner. These orders are less severe, and a violation would not face criminal consequences.
What are the steps to taking out a restraining order?
First, always speak with your lawyer before pursuing a restraining order. While you do not need a lawyer to obtain an order, legal guidance can help you determine the type of order that you need. For example, if you believe that your need is urgent, but the Court disagrees, you may be held responsible for your former partner’s legal costs in that motion.
Your lawyer can assist you with the all of the paperwork for you to complete, including your contact information, your former partner’s contact information, along with a thorough report of the incident(s) and any supporting evidence. In many cases, a judge will review your submissions initially and can determine if a temporary order is needed before the hearing.
You will then prepare your thorough evidence and attend your hearing. Your hearing is the opportunity to present your case before the Court, and your lawyer will help you prepare for this. If your former partner does attend, they will be given the opportunity to present their case as well. Witnesses may also be asked to testify. The Court will then assess what sort of order is needed, and for how long.
Once an order is issued, there are restrictions on your former partner of course but you have responsibilities as well. Keep copies of the order, and provide a copy to your employer, your child’s school or daycare, or anyone else that is relevant. If you need to contact your former partner once your order is in place, make sure to do so through the required channels set out in the order. Breaching an order can put your credibility at risk before the Court.
Final Thoughts
Yes, it is true that you do not need a lawyer to apply for a restraining order. However, your application process is about putting your best case forward, and a lawyer can help you do exactly that. A lawyer can help avoid a situation where you have not made your case clearly and are not granted the restraining order that you need for your safety or the safety of your children.
Our team of experienced family lawyers have dealt with all varieties of family law issues, and we’re not afraid of a difficult situation. Your safety is paramount, and our role as family lawyers is to help advocate for your needs through the family law system. Contact us today to set up a consultation.