We’ve previously looked at the topic of restraining orders, which, in the context of family court, are orders that prohibit the contact that one party can have with another. A restraining order has to be requested by way of a motion, and the party seeking the order must provide affidavit evidence to substantiate the need for the order.
Recently, the Ontario Court of Justice ruled on a motion in which one party (the mother) brought a motion for a temporary restraining order against the other (the father): R.S. v. M.S.M.. In making its decision, the Court reviewed the legal principles with respect to restraining orders, adopting the analysis of Justice Spence in McCall v. Res.
Restraining Orders: Legal Principles
The legal principles guiding the court’s analysis can be summarized as follows:
- The statutory authority for the making of a restraining order emanates from s. 35 of the Children’s Law Reform Act and s. 46 of the Family Law Act;
- Both statutes require that the person seeking a restraining order must have reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody;
- It’s not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order; it is enough that an applicant has a legitimate fear of such acts being committed;
- There can be fears of the applicant that are of a personal or subjective nature, but they must be related to a respondent’s actions or words; a court must be able to make this connection for these fears to weigh in the analysis; and
- The fears of the applicant may be equally for psychological safety, as well as for physical safety.
Findings in R.S. v. M.S.M.
In R.S. v. M.S.M., the Court granted the mother’s request for a temporary restraining order that the father be restrained from molesting, annoying or harassing her or the child or coming within 500 meters of anywhere that she and the child might reasonably be expect to be.
The Court accepted the mother’s evidence in support of her allegations that the father had been violent, threatening and controlling with her. The mother’s evidence included the following:
- the father threatened to deport her from Canada and take her child from her;
- the father threw objects across the room and swore at her in front of the child when enraged;
- he did not let her communicate with friends and family in Pakistan and threatened that if she didn’t leave Canada quietly he would make sure she left Canada alive or dead; and
- the father’s harassment had been escalating in recent months.
Although the mother did not provide affidavits from her family members, or submit any police records, the Court recognized the power imbalance between the parties, and recognized that the mother was afraid and had been controlled by the father and his family for a long time. In granting the order, the Court concluded that:
- The mother’s fear of the father was reasonable;
- Even if the extent of the mother’s fear of the father was subjective, it was legitimate;
- The mother feared for her psychological safety as well as her physical safety; and
- The terms of the order sought by the mother were reasonable and proportionate.
Domestic violence is a terrible reality for many Canadians, however, there are resources available for victims. If you need assistance or have questions, talk to a lawyer to learn where you can go to get help, who to talk to for counselling services, and what legal resources may be available for you. Reach out to the team at Gelman & Associates at (416) 736-0200 or (844) 736-0200 or contact us online for a confidential initial consultation.
