Restraining Orders and Emergency Orders

In Ontario, there are two ways to obtain a Restraining Order: through the Family Courts and through the Criminal Courts. The main difference between these is they have different criteria to be met. In Family Court, a spouse or common law spouse may request a restraining order against their partner, but not against the family or friends of their partner.

Most restraining orders are temporary, although they can be made permanent as well.

The Whitby family lawyers at M. G. Michaels & Associates have experience obtaining Restraining Orders and Emergency Orders when the unfortunate need arises in the communities of Whitby, Ajax, Pickering, Oshawa, Bowmanville, and Courtice in Durham Region.

In Family Court, you must convince a Judge that you have reasonable grounds to fear for your safety, or the safety of a child in your care, from your spouse or common law spouse.

For example, where the spouse threatens to commit an act of violence against you or the children in your care, a Judge will decide whether your fear is ‘reasonable’.

The Court will consider the facts from an outsider’s perspective so, would another person, in your situation, feel the same fear for safety from your spouse if they were in your shoes? If so, the restraining order will likely be granted.

If you are living in a marital or common law relationship, you can ask for a restraining order against the partner with whom you are living, or with whom you used to live before your separation. You can also ask for a restraining order against a person with whom you share a child, even if you never lived together.

Some partners behave emotionally and unreasonably after separation, such as stalking the spouse they became separated from, or phoning them multiple times a day for no valid reason, or going to their workplace to cause a scene, or making access exchanges a verbal war in front of the children, or make threats of physical violence against your or your children. Those are all valid reasons to request a restraining order.

A spouse is limited in that the Family Court can only grant a restraining order against your married or common law spouse, or the other person with whom you had a child.

If the behaviour of one of the spouses changes and becomes harassing or annoying, you may want to consider seeking a restraining order.

However, minimal harassment, such as sending you an email a week for five weeks, begging you to reconsider the breakup, is not likely to be found to be sufficient harassment to warrant the granting of a restraining order.

On the other hand, if your spouse “blows up your phone” by texting you over and over again at all hours of the day and night so that you cannot achieve a moment of peace and quiet without turning off your phone volume, that is more likely to be found sufficient to warrant a restraining order being issued.

Most restraining orders prohibit a person from coming within a specified distance from you, as well as the place where you live and work and where you otherwise regularly spend time. With respect to your children, that same restraining order can prohibit the other parent from approaching the children’s day care, school or activity locations. The restraining order will also likely require the other person not to contact you or the children in any way, such as by phone, text, email, or social media as well as, of course, in person. A Judge does, however, have discretion to include other provisions in a restraining order, depending upon what may be appropriate in the circumstances.

Many family law lawyers are able to prepare the necessary paperwork to request a restraining order in a couple of days; shorter if the fear of harm is extremely high.

It is necessary to prepare papers to start a case in Family Court, which involves completing several Court documents, filing them and then asking the Court to review some of the documents, without the need for anyone being present at Court and, if satisfied that you have a reasonable explanation for fearing for your safety, or that of your children, the Court can generally grant the restraining order in the same day.

If the request for a restraining order is to stop harassment, rather than a fear of the risk of physical harm, it is dealt with as part of the process of your Family Court file and it will be months before it will go in front of a judge for consideration. Only if there is an emergency situation will a judge consider your request right away.