November 4, 2024 – Restraining Orders

“Section 46 of the Family Law Act states the following:

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.  2009, c. 11, s. 35.

(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.  2009, c. 11, s. 35.

(3) A restraining Order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

          1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
          2. Restraining the respondent from coming within a specified distance of one or more locations.
          3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
          4. Any other provision that the court considers appropriate.  2009, c. 11, s. 35.

To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent’s liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

So, while the court must assess the applicant’s subjective fear, it must only grant the Order where that fear has a “legitimate basis”: Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father’s actions or words with the Mother’s fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.”

            Daleman v. Daleman, 2021 ONSC 7193 (CanLII) at 133-135

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