“AN seeks a restraining order against IF and BOF, based on his fear that they will continue to engage in spiteful, accusatory and abusive behaviour against him. The authority on which AN relies on for the court to make a restraining order is set out in s. 46(1) and (2) of the Family Law Act, R.S.O. 1990, c. F.3., which provides as follows:
46 (1) 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 own safety or for the safety of any child in his or her lawful custody.
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
I find that s.46 of the Family Law Act only permits the court to make a restraining order against a spouse, or a former spouse of someone who has cohabited with AN for a period of time. Since AN is seeking a restraining order against IF and BOF, the maternal grandparents, the authority for the restraining order he seeks is s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which allows AN to ask for a restraining order against any person. Section 35 provides as follows:
35(1) 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.
For me to grant AN the restraining order he seeks against both IF and BOF, I must be satisfied that AN has reasonable grounds to fear for his safety or the safety of E.: s. 35(1).
In Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), the Court held that the onus of proof is on the person asking for a restraining order and that the standard of proof is on a balance of probabilities: at para. 36.
A person’s fear sufficient to justify a restraining order may be entirely subjective, so long as it is reasonable and legitimate.
In R.K.K. v. J.L.M., 2007 ONCJ 223, Dunn, J. held at paras. 33-34:
When a court grants a restraining order in an applicant’s favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.
If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.
In McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order:
What I take from these cases is:
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- The fear must be reasonable;
- The fear may be entirely subjective so long as it is legitimate; and
- The fear may be equally for psychological safety, as well as for physical safety.
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The above analysis from McCall, supra, was adopted by Kiteley J. in Lawrence v. Bassett, 2015 ONSC 3707 (Ont. S.C.J.). Kiteley J. underscored the point that the fear may be equally for psychological safety as well as physical safety.
In Bedzow-Weisleder v. Weisleder, 2018 ONSC 1969, one of the issues at trial was whether a permanent restraining order ought to be issued. The evidence in support of the restraining order centered around communications from Ms. Bedzow consisting of e-mails, texts and Instagram posts. These were found to be “harassing, abusive, vulgar, and hateful”: at para. 13. Akbarali J. also found that a legitimate fear for one’s psychological safety and not just physical safety is sufficient to conclude that the grounds for a permanent restraining order were made out since Ms. Bedzow’s communications engendered a legitimate fear in Dr. Weisleder for his psychological safety, were emotionally abusive and that Dr. Weisleder should not be subject to them: at paras. 34-35.”