Protection Orders – Part 2: A Basic Guide to Restraining Orders
If you are afraid that your partner or former partner will hurt you or your children, you can ask a Family Court for a Restraining Order. A Restraining Order is one type of Protection Order. Protection Orders are decisions by a judge that put restrictions on someone’s behaviour. Orders are legally binding, which means they have to be followed.
For more information about Restraining Orders read below. For information about how to get a Restraining Order, contact a Family Law Information Center at your nearest Family Law Court or visit the Family Duty Counsel at the courthouse.
Who can get a Restraining Order?
In Ontario, under the Family Law Act, you can get a Restraining Order against a person that you are or were married to, or against a partner that you are or were living with. It does not matter how long you lived with the person. This mainly refers to intimate partner relationships. Under other family law legislation, it may be possible to get a Restraining Order against a family member or other individual you have lived with, especially if you are concerned for the safety of your children.
If you feel threatened by someone that you are not living with or have never lived with, you cannot apply for a restraining order, but you may be able to get a Peace Bond (see Part 3 of this series).
What kind of protection does a Restraining Order offer?
Restraining Orders often say that the person you are afraid of is not allowed to communicate with you or your children, either in person, by telephone, Facebook, notes or through messages from other people.
Another very common term in Restraining Orders is that the person you are afraid of is not allowed to come within a certain distance of you or your children, or that they are not allowed to go within a certain distance of places that you regularly go to, such as your home, your children’s school, your workplace or any other location, like a family member’s home or your place of worship.
A judge can decide to put other kinds of limitations on the person in the Restraining Order. When applying, you should think about what type of protection you need, and be as clear as possible, so that the judge understands what should be included in the Order to protect you and your family. For a Restraining Order to be effective and enforceable, it must be specific and detailed; it must include specific locations and the distance away the other party must stay.
There are different types of Restraining Orders that you can get depending on your needs and circumstances.
A Restraining Order is a civil protection order from the Family Court system. A Restraining Order can be issued permanently or for a set amount of time. If it is issued for a set amount of time, the expiry date will be located in the Order. The Order can be reviewed or renewed if you feel you are still in danger after it expires.
After you have filed your application, you will need to go to court and so will the person you are seeking the Protection Order against. The process for getting a Restraining Order can take a few months because both sides present their version of the story to the judge in court. It is usually a good idea to get the help of a lawyer.
Urgent Restraining Order:
If you need help from immediate harm, you can ask the court for an Urgent Restraining Order. It is a good idea to consult with a lawyer before making this type of application because if the court does not think your application is urgent, it can make you pay the legal costs of the other person. An urgent Order will only last a short period of time. This short time frame is meant to provide temporary protection while you apply for a more permanent Restraining Order.
Ex Parte Restraining Order:
An Ex Parte Order is a judge gives an Order without telling the abuser (called giving “Notice”). It is usually only a temporary Order and is used when it is not safe for you to be in the same place as your abuser at the same time. It can also be used if the person you are afraid of is not available to appear in court because they are getting out of jail soon. In these cases, a Restraining Order will be given until your partner or ex-partner comes to court – at a different time – to respond. The judge will make the final decision about the Restraining Order once she has heard both sides.
The courtroom is generally a very controlled environment, but in the hallways, or outside the courthouse, you may feel at risk. You should consider going to court with someone for support. In addition to women’s shelters, there are community groups and legal clinics that may provide assistance to women involved in the court process.
No Communication or No Harassment Order
A family court judge can also make an Order that your partner cannot directly or indirectly contact or communicate with you if the judge thinks it is necessary for the case. This type of Order is similar to a Restraining Order because it restricts a person’s behaviour, but it does not have criminal consequences if it is not followed (breached).
What does the judge consider when deciding to make a Restraining Order?
The judge has to consider whether you have a reasonable fear for your safety. This means the judge will decide whether a person in your same situation would be afraid for their physical safety or the safety of their children.
In order to meet this requirement, you must have proof. Here are some strategies for keeping track of any harassing or abusive behaviour that may be used as proof:
- document every time the individual engages in unwanted or threatening contact with you or members of your family (make sure to keep this record safe)
- keep any evidence of abuse such as hospital records or photographs
- document each time the person has damaged your property or has threatened to damage your property
- keep a list of witnesses to any harassing behavior such as neighbours or friends. Have these individuals tell their stories to the police
- save as many gifts, emails, voicemail messages and text messages that show the unwanted behaviour as possible
What do I do after I get a Restraining Order?
If the judge issues a Restraining Order, you should ask the court for copies. Keep one copy with you at all times and consider giving other copies to someone where you work, at your school, and at your child’s daycare or school. A Restraining Order alone cannot guarantee your safety. It should be one tool in your overall safety plan.
If you have a Restraining Order against someone, you should not have any voluntary contact with that person. If you do, this may make the police or the court doubt whether you really needed the Order. You cannot be criminally charged for contacting the person against whom the Order is issued; however, doing so may affect your credibility in other family court proceedings, particularly if you continue to have problems with this person or the protection of your children is at issue.
If you do need to contact the person against whom the Restraining Order was issued, for example, to discuss a matter that has to do with the children, it is a good idea to go through a lawyer or some other person who can communicate your message for you.
What happens if a Restraining Order is not followed?
If a Restraining Order is not followed (breached), you should consider calling the police immediately and if necessary, arrange to go to a safe place such as to a women’s shelter, or to a friend or family member’s home. Breaching a Restraining Order is a criminal offence under s.127 of the Criminal Code. Individuals who breach a Restraining Order can be arrested and charged. If they are convicted, they may face fines or jail time.