Restraining Orders and Family Court

labyrinth-of-love-1-1418590-sWhile peace bonds may be available to anyone through the criminal court, restraining orders are issued through the family court system and are therefore only available to people who have lived together as a couple and any children involved.  The purpose of a restraining order is to prevent a person from molesting, annoying, harassing or communicating with the Applicant or Respondent of a family law matter, with one’s spouse or former spouse or the children.  The term “spouse” includes a same-sex partner or a common-law partner.  The law has changed to include a former boyfriend or former girlfriend if they were living together.

A restraining order is an order made by a family court which orders a person or persons to stay away from you. The ro1order can include special terms that state how far away the person must stay from you and identify specific locations where the person must not attend or try to contact you, for example, your home or workplace. The order can also be extended to cover any children in your care. The order can also specify that a person is not to contact another person by any means. If a person breaks a restraining order, they can be arrested and charged.

To apply for a restraining order, it is highly recommended that you speak with a lawyer. If you do not have a lawyer of your own advice lawyers are available during certain times at the court-house . Information about how to apply for a restraining order by yourself is also available on the website for the Ministry of the Attorney General and at the court-house. If you have not already started a case in the family court, you will need to file an application. This form starts the court process. The application form sets out all of the issues that you are asking the court to deal with. In family court, you are called the applicant and the person against whom the order is being sought is called the respondent. Your case may involve only a restraining order. Or it could involve a restraining order and something else, such as custody or child support. Once you file an application there are certain steps in the court process that you and the other person must follow. Normally, it will be a few weeks before you see a judge for the next step in your case. In most cases, you will be required to go to a case conference before you can ask the court for an order.

ro6The information that you write on the application form tells the judge what you are asking for. On the last page of the application form, you will need to show why the judge should include each term you have requested in the restraining order. For example, you may have asked the judge to order the other person to stay a certain distance away from specific places. Be sure to include the reasons why you want this person kept away from these places. Or, you could ask that the other person not call you between certain hours and explain why. The judge will decide whether or not all the terms that you have requested will be part of the restraining order.

When you have completed the application, take it to the family court counter to be signed and dated by the clerk. Depending on the court you are in, court staff will provide you with a first court date.

Be sure to follow the instructions that appear on the application form. For more information about starting an application, refer to the Guides to Procedures available at the family court office or on the Ministry of the Attorney General’s website. When you file an application for a restraining order, family court staff will ask you to complete a Canadian Police Information Centre (CPIC) Restraining Order Information. If a restraining order is granted, this form is sent to the police, to show that a judge has ordered the restrained person to stay away from you and/or your children. A copy of the restrro2aining order is also sent to the police with the CPIC form.

The affidavit form is where you tell the court why you have reasonable grounds to fear for your safety and/or for the safety of your children. In the affidavit you should set out the information that the judge will need to know about you and the person you are afraid of, including:

  • The relationship between you and the other person (whether you are married, living together, separated or divorced);
  • Whether you and the other person have children together and where the children are living;
  • Any abuse that you and/or the children have experienced; and
  • Why you are afraid for your safety and/or for the safety of your children.

Be detailed in your explanation of why you are afraid of this person. If you can, include the following:

  • Has the person made threats against you and/or the children?
  • If the person has hurt you and/or the children, explain exactly how it happened;
  • Are you afraid that the violence will happen again?
  • Is there a history of violence or abuse?
  • If there is a history of violence or abuse, is it getting worse?
  • Has the person hurt or threatened others?

ro4You should also explain why you want the judge to include the terms you have included in your notice of motion. For example, you may have asked the judge to order the other person to stay a certain distance away from specific places. In your affidavit, be sure to include the reasons why you want this person to be kept away from these places. The judge will decide whether or not all the terms that you have requested will be part of the temporary restraining order. Keep in mind that the person you are seeking the restraining order against will read your affidavit.

You must swear or affirm that the affidavit is true in front of a person who is a commissioner for taking affidavits. If you need help finding a commissioner for taking affidavits, staff at the family court-house may be able to help.

Try to include only facts that you know from your own experience. If you need to include information given by a friend, family member or someone else, you should name the person who gave you the information and state that you believe it to be true. Here is an example: The responding party’s employer, John Doe, told me that the responding party started work at ABC Ltd. in November 2008. I believe this information to be true. Remember, it is a criminal offence to swear a false or misleading affidavit. It is your responsibility to make sure that the information in your affidavit is correct.

In a non-emergency situation, notice of the application for a restraining order must be given to the ro3respondent. That person can then attend the application and speak about the order being granted or not from their perspective.

If, however, your situation is urgent you can bring a motion to get a restraining order right away. A motion is a step in a case where you ask a judge to decide issues on a temporary basis. For example you may be seeking child support or custody but also need a restraining order right away.

When the other person is served with an application, they may set out their response to the application and file it with the court. In an answer, the other person can also ask the judge to make other orders in the case. The other person must serve you or your lawyer with a copy of their answer. If there is a “first court date” on the application or on the hearing date set out on a notice of motion, the judge will expect you and the other person to be in court on that date. The date and time for your court date is set by the court. If there is no first court date on the application, you or the other person must ask staff at the family court office for a case conference date. Ask your lawyer, the advice lawyer at the Family Law Information Centre or family court office staff about when a case conference, or an uncontested trial if no answer is filed, can be scheduled. If the other person is served with a copy of a temporary restraining order and motion documents filed on a motion without notice, the judge will expect you and the other person to be in court on the court date set out in the order.

ro5You will need to file the “confirmation” form to say that you will be in court on the date of the hearing. If you do not file the confirmation, the court date may no longer be available for you. It is important to go to court on your court date. When your application or motion is heard, the judge will consider what you and the other person have written in your court documents and what you are asked to tell the court. The judge will make a decision based on the evidence. You will be called in to the courtroom to speak with the judge.

If the judge orders the restraining order, it is important to carry a copy with you at all times and to keep one at home, at work, at your children’s school, daycare and after-school activities and anywhere else named in the order. If a person breaches the terms of a restraining order, the person can be arrested. If you carry a copy of the order you will be able to show it to any authority, such as the police, who can then take the necessary action in arresting the offender.

Ontario Ministry of the Attorney General

Canadian Bar Association

 

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Categories: Assault, Dating Violence, Domestic Violence, Stalking & Harassment, Trauma, Victimization

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