March 17, 2022 – Restraining Orders Under the CLRA

“The court is authorized to make a restraining order pursuant to s. 35(1) of the [Children’s Law Reform] Act:

Restraining order

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.  2009, c. 11, s. 15.

The applicant relies on McCall v. Res, 2013 ONCJ 25, where there is a helpful discussion as to the necessary evidence to justify a restraining order. In paras. 29-31, the court states (with any emphasis being in the original):

29      Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:

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. 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.

30  In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

31      What I take from these cases is:

            • The fear must be reasonable
            • The fear may be entirely subjective so long as it is legitimate
            • The fear may be equally for psychological safety, as well as for physical safety

An underlying principle is that a person’s fear for his or her safety or the safety of a child, must be related to a respondent’s actions or words.”

      Stephens v. Sommerville, 2021 ONSC 1958 (CanLII) at 37-39