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Injunctions in Family Law Matters

Injunctions in Family Law Matters

Last week we wrote a Blog post about Certificates of Pending Litigation (CPLs), Tying Up Land During Family Law Disputes http://tinyurl.com/c2h8gas, which are one of several legal procedural mechanisms that facilitate the orderly resolution of a family law matter prior to trial. This week, I wanted to briefly discuss another one of these mechanisms – namely the Injunction – and how it can relate specifically to matrimonial disputes.

What is it?

An Injunction is a court-imposed remedy by which a person is ordered to either refrain from doing something, or else is ordered to actively do something. Due to the nature of the remedy, an Injunction order must sometimes be obtained using stealth, for example where the intent is to stop a parent from removing a child from the jurisdiction; the other parent will not want to provide advanced notice that an order is being sought, lest it trigger or precipitate an earlier departure by the other parent.

It is also important to note that an injunction is not limited to use in family law – rather, it is a creature of the more general civil law that can nonetheless be applied in proper circumstances to matters that relate to division of matrimonial property and other family matters. Indeed, the Family Law Rules do not specifically refer to Injunctions, but family courts are instilled with the general power to order them pursuant to the Courts of Justice Act.

What is the test?

The well-established legal test for an Injunction comes from a Supreme Court of Canada case called R.J.R. MacDonald Inc. v. Canada (Attorney General), and requires that the following questions be addressed by the court charged with the task of considering the Injunction application:

1. Is there a serious issue to be tried?

2. Will there be irreparable harm?

3. What is the balance of convenience between the contesting parties?

In all cases, the party seeking the Injunction order must be scrupulously frank and forthcoming about the relevant facts, whether they are in favour or opposed to his or her legal position. This is especially the case where the motion for the Injunction is being brought to court without giving the other spouse or parent notice of the hearing and therefore depriving him or her of the chance to make representations.

It should also be noted that there are several different types of Injunction, including a “Mareva” injunction (one that ties up another party’s financial assets) and what is known as an “Anton Piller Order” (which specifically orders the seizure of property or documents). The test for obtaining these kinds of orders is the same as for “regular” Injunctions, but in some cases has been fine-tuned in order to address the specific inherent risks as well as the rights of the parties.

When can it be used?

Family law disputes give rise to a surprisingly large range of scenarios to which a court-ordered Injunction can be applied. For example, as mentioned an Injunction may be granted in order to stop a parent from removing a child of the marriage from the jurisdiction; it may also be used to prevent a separated spouse from removing or dissipate matrimonial assets pending their division and distribution by a court after a trial, or prevent one party from destroying documents that need to be produced for the trial between the spouses.

For the full text of the cited decision, see:

R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.