Restraining orders aren’t just a criminal law remedy; they can also be granted in family law litigation. These orders can prevent a person from contacting or communicating with their ex or their children.
Where does the power to grant restraining orders in family law come from?
Section 35(1) of the Children’s Law Reform Act (“CLRA”) empowers judges to grant restraining orders in family law disputes. The section reads:
On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Section 35(1) of the CLRA is similar to the restraining order provision (s. 46) of the Family Law Act (“FLA”), which states:
On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her safety or for the safety of any child in his or her lawful custody.
What does the case law say about restraining orders in family law disputes?
Claims for restraining orders are serious and ought not to be made lightly. [Lafrance v. Thomas, 2012 ONCJ 350]
The person seeking the order bears the onus of showing that the order is necessary on a balance of probabilities. [See Stave v. Chartrand, 2004 ONCJ 79]
In Stave v. Chartrand, the Ontario Court of Justice stated:
The court must approach the issue of whether to impose a restraining order with caution. The nature of an order under s.46 of the FLA is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature.
The repercussions of a restraining order on a party’s position in a family law matter are very serious. On this point, the Ontario Court of Justice, in (A.) v. W.(J.), 2004 ONCJ 157, stated:
Restraining orders are serious business. They are reserved for situations where the evidence satisfies the court that a parent or child in that parent’s care needs protection from the person named in the order. […]
As a matter of common sense, restraining orders make complex all manner of things that need to be kept simple for a child – arrangements for his contacts with his non-custodial parent, the ability to involve both of them in his school and community activities to which parents are ordinarily invited and his image of each parent. They send a message to a child that he cannot count on his parents to conduct themselves courteously in his best interests and that their needs and desires are more important than his own.
A person seeking a restraining order must be scrupulously fair about the evidence placed before the court for such an order. A fear of abusive or threatening conduct must be reasonably grounded. Allegations that a child’s parent presents a risk, if not restrained by court order, are not to be flung about for the purpose of creating mischief for either the child or a non-custodial parent.
The impact of a restraining order can be devastating for a parent’s position in a larger custody and access dispute. Because of the serious prejudice that can result from a restraining order, courts should approach requests for such orders with caution. Where one party seeks a restraining order that prevents the other from communicating with or seeing the children, all allegations of violence or abuse should be scrutinized carefully, as there could be other motivations at play (such as a desire to gain an advantage for a later sole custody claim). This is not to say that all requests for restraining orders are spurious – in some situations, the necessity of a restraining order will be clear.