Restraining orders are a crucial legal mechanism under Ontario’s Family Law Act for protecting individuals who have reasonable grounds to fear for their safety or the safety of their children.
Section 46 of the Family Law Act outlines the criteria, application process, and scope of restraining orders, ensuring that they are granted only in clear and justified circumstances.
This article provides an overview of the legal framework governing restraining orders, including judicial interpretation and relevant case law.
Section 46(1) of the Family Law Act grants Ontario courts the authority to issue interim or final restraining orders where the applicant can demonstrate reasonable grounds to fear for their own safety or the safety of a child in their lawful custody. The order can be issued against a spouse or former spouse of the applicant or a person who is cohabiting with or has previously cohabited with the applicant. The order may include restrictions on contact or proximity to certain locations.
Ontario courts have emphasized that restraining orders are serious measures with significant legal consequences, including potential criminal liability if breached.
The key principles governing the issuance of these orders were articulated in Tarnovean v. Collantes, 2024 ONCJ 615 (CanLII) and include:
1. Restraining orders should only be granted where a clear case is made out
2. Borderline cases should not result in restraining orders merely out of caution
3. A restraining order carries serious implications, including potential impacts on employment and immigration status
4. It is insufficient to argue that granting the order causes no harm; the statutory test must be met
5. Past restraining orders do not automatically justify new ones
6. Applicants must establish both subjective fear and objective reasonable grounds for fear
7. Evidence of specific events and their connection to the present situation is required
8. A respondent need not have committed an act of harassment; a legitimate fear is sufficient
9. A restraining order must be based on specific conduct or words, not vague fears
10. Lengthy harassment or a pattern of distressing behavior strengthens the case for an order
11. The passage of time is a relevant factor; prior incidents may lose their significance
12. Other protective measures should be considered in borderline cases
13. Courts should weigh the prejudice to the respondent when making an order
Ontario’s Children’s Law Reform Act also plays a critical role in the context of restraining orders, particularly where family violence is alleged. Subsection 24(4) of the Children’s Law Reform Act directs courts to consider the nature, seriousness, and frequency of the violence; patterns of coercive and controlling behavior; direct or indirect exposure of children to violence; and psychological harm or risk to the child or applicant.
The Children’s Law Reform Act defines family violence broadly, encompassing physical, psychological and financial abuse, harassment, and threats.
Courts recognize that family violence often occurs in private, making it difficult to prove through traditional evidence sources.
The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 reinforced the importance of recognizing family violence in family law proceedings by recognizing:
· exposure to family violence has long-term emotional and behavioural impacts on children
· family violence allegations are difficult to prove due to their private nature
· the absence of third-party corroboration does not negate an applicant’s claim
Ontario courts have similarly acknowledged that victims may delay reporting or present inconsistent evidence due to trauma.
Furthermore, the withdrawal of criminal charges does not preclude a finding of family violence in family court, given the lower standard of proof.
In conclusion, the granting of a restraining order under Section 46 of the Family Law Act requires courts to carefully balance the applicant’s safety concerns with the respondent’s rights. While restraining orders provide critical protection for victims of domestic violence and harassment, they must be based on clear, objective, and subjective grounds of fear, supported by credible evidence. The evolving legal landscape, including recent case law, underscores the judiciary’s cautious and evidence-driven approach in determining when such an order is appropriate.
CASE LINK:
https://www.canlii.org/en/on/oncj/doc/2024/2024oncj615/2024oncj615.html
https://www.canlii.org/en/ca/scc/doc/2022/2022scc22/2022scc22.html
Share this article on: