Skip to content

Posts from the ‘Restraining Orders’ Category

Can Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

 

Can Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

The father and mother, now separated, had two children together.  The father, who worked as a taxi driver, had full custody of them and received no child support from the mother.

The mother had a new partner, Mr. V., who had apparently been abusive not just toward her and the children, but towards the father as well.  As the Court put it, the litigation record was “replete with allegations of abuse perpetrated by Mr. V.” against the father, mother and their children.

On two occasions, the father refused to let the mother have access to the children, despite a Court Order requiring him to do so.  In the face of those two incidents, the mother went straight to court and successfully obtained another Order which held the father in contempt.   The Order also included a provision requiring the mother, father, and children to participate in counselling, and – quite unusually — added that Mr. V. was to participate in the counselling as well.  Moreover, the father was ordered to fully co-operate with all recommendations made by the counselor, and in connection with Mr. V’s participation as well.

Among other grounds, the father successfully appealed the stipulation as to counselling, in part.

Firstly, the Appeal Court observed that in requiring the mother’s current (and allegedly abusive) new partner at the counselling, the trial judge had likely not considered the children’s best interests.   But even from a practical standpoint, that term of the Order was untenable because Mr. V. was the subject of a restraining order, which had been folded into the Order that granted the mother access to the children.  That restraining order prohibited Mr. V from being within 500 meters of where the mother was exercising her access rights. The Court found it was an actually an error in law to order counselling that involved Mr. V.  in the face of an order that restrains his ability to be anywhere near the children.

The Court therefore set aside the part of the Order relating to Mr. V’s involvement, and merely directed that the father was ordered to “attend and co-operate with the counselling process.”

In other words:  The Court concluded that it was a bad idea to have the mother’s new boyfriend at the fractured family’s counselling sessions – particularly since he was alleged to be abusive to everyone else attending, and since he was subject to a restraining order. Perhaps not a surprising outcome.

For the full text of the decision, see:

Ralhan v. Singh

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 RussellAlexander.com

 

Will Ruling on Twitter-Based Harassment Affect Family Law?

twitter harrassment

Will Ruling on Twitter-Based Harassment Affect Family Law?

In a case that made the headlines last week, Gregory Alan Elliott was found by an Ontario Court to be not guilty of criminally harassing two women, Stephanie Guthrie and Heather Reilly, by way of Twitter. They had accused him of being “creepy” and misogynistic in what they considered to be an excessive number of Twitter references to them, even after they blocked him and asked him to stop. The women, who happened to be involved in a group called Women in Toronto Politics, felt that the sheer “volume” and obsessive nature of Elliott’s tweets left them feeling harassed to such an extent that they complained to police, resulting in Elliott’s arrest and criminal proceedings. As the court described it:

Mr. Elliott sent some tweets directly to both women, but the prosecution does not rely on the direct tweets alone. Ms. Guthrie’s harassment and fear came from her perception that Mr. Elliott sent an incessant and obsessive amount of tweets, including those not sent directly to her but of which she would have been advised. Ms. Reilly became fearful when she inferred from one of his tweets that Mr. Elliott might be in the same physical place as her. The alleged communication by tweeting also includes tweets by Mr. Elliott about subjects, topics, ideas and events that Ms. Guthrie and Ms. Reilly were interested in and therefore might or probably would read.

The back-story and coverage of the three-year long criminal case and subsequent acquittal in R. v. Eiliott – which is apparently the first Canadian one of its kind involving Twitter as the medium for the alleged harassment – is easily found on the internet. But the interesting question is whether this criminal law decision will have any reverberation in the sphere of family law disputes.

In the past, I have written about the use of Facebook (and theoretically, other social media) in divorce and related family proceedings. In that context, Facebook’s role has come under scrutiny in many different contexts:

• the admissibility of evidence secretly obtained from a spouse’s Facebook;

• whether parents should be barred from posting details of their family disputes online;

• whether non-public Facebook information should be kept private in terms of disclosure for family proceedings; and

• and the question of how children might be adversely affected by posted information, as in the case of the separated father who posted photos of his children on his Facebook page.[]

Collectively, the outcomes in these cases suggest that courts remain conservative and resoundingly sensitive when striking a balance between broader freedom of expression rights on the one hand, and the protection of spouses’ and children’s interests on the other, even in the “wild west” milieu of social media. Indeed, family courts have certainly shown a willingness to address – and if need be, curtail — any intrusive and negative effects of social media, so that the resolution of family disputes does not impair the rights and interests of its participants, especially the children.

It will be interesting to see how this latest ruling in R. v. Elliott will be adapted (if at all) to the family law realm, given that it arguably upholds a relatively-unfettered ability to use of Twitter (within the customary proscribed limits imposed by Canadian constitutional, criminal and human rights law, of course).

For the full text of the decision, see:

R. v. Elliott, 2016 ONCJ 35 (CanLII)

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

Need a Restraining Order? Here’s What You Need to Know

panic

Need a Restraining Order? Here’s What You Need to Know

Not to drift too far from the spirit of the holiday season, I wanted to revisit the law on Restraining Orders, which was featured in a recent blog on a case called McCall v. Res. There, the court considered whether to grant a Restraining Order and in particular assessed the test under section 46 of the Family Law Act of whether the person applying 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 those who are considering an application for a Restraining Order, it’s important to note that this section 46 threshold test has certain embedded components. In an earlier case called Fuda v. Fuda, the court established that in order to obtain a Restraining Order:

• The applicant’s fear must be reasonable.

• It can be of a personal or subjective nature, as long as it is legitimate.

• The fear may relate to either psychological or physical safety.

• The fear need not arise from the other person actually committing an act, gesture or words of harassment; it is enough that the person applying has a legitimate fear of them being committed.

• The person applying must be able to associate his or her fears with the other person’s actions or words.

Incidentally, the court pointed out that in order to be eligible to obtain a Restraining Order the person applying does not have to have an overwhelming fear that “could be understood by almost everyone”; on the other hand, a Restraining Order cannot be granted to forestall every perceived fear of insult or possible harm (unless there are compelling facts in justification).
Finally, as for the terms of the Restraining Order granted against a person, the court has wide discretion to make an order that it “considers appropriate”. This can specifically include an Order that the person:

• Not contact or communication with the person applying or any child in his or her company; or

• Not come within a specified distance of one or more locations.

One final point (but a very important one): A Restraining Order can only be granted against a specified class of people, namely a spouse or former spouse of the person applying, or else a person who is currently living with, or formerly lived with him or her – and there is no minimum time limit for the living-together period.

For the full text of the decisions, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

Fuda v. Fuda 2011 ONSC 154 (CanLII)

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

Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

screaming-

Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

Recently, we wrote a Blog about an Ontario case  in which the court was asked to grant a Restraining Order to prevent a man from posting scandalous details about his Ex’s “private intimate information” on the Internet.

I also wrote recently about a case called McCall v. Res  which involved a separated parents in high-conflict. There, the same court considered the mother’s request for a Restraining Order, this time in response to many incidents involving the father (which he did not deny). In the mother’s own words:

• “[he] shoved me to the floor while swearing angrily at me”.

• “knowing I was pregnant”, he slapped [me] in the face “extremely hard, threw a banana at the wall and stomped around the house in an infuriated state”.

• “grabbed the chair I was sitting in, when he felt I was taking too long at the computer, and forcefully wheeled it to the front door of the home, and threatened to eject me out the front door and into the street, while he was cursing at me and telling me to get out of his home, which was also my home at the time”.

• “on one occasion he left the house, commenting that I would end up giving birth to a ‘cripple’, due specifically to my eating habits”.

The court said this was “but a few of the many examples of harassing behaviour” that the father had inflicted on the mother in the past, and added that there were several other incidents that the court could certainly have drawn from.

Still, the case was a little unusual because it focused on whether the mother’s fear of the father was reasonable. In considering her request, the court remained mindful that under s. 46 of the Ontario Family Law Act, courts only had the authority to grant a Restraining Order if:

1) the person applying is a spouse, former spouse, or a person currently for formerly living with the person against whom the Order is sought; and

2) the person applying has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”

On this second point, the McCall case had an interesting twist: the father claimed the mother’s feelings of so-called torment were not truly because of his conduct, but rather were caused (or magnified) by the fact that she had suffered a brain injury in a motor vehicle accident. After being comatose for a period, she was able to live independently and was now leading an “almost typically normal life”, but had problems with cognition and (as the court put it) was “somewhat vulnerable to the influences of those she is close to.”

But in the end, the court was not swayed. Even taking into the mother’s injury-related challenges, and even taking a narrow view of the many prior incidents instigated by the father, there was more than sufficient reason for the mother to have a reasonable, legitimate, and subjective fear of being harassed and manipulated by him. The court granted the Restraining Order against the husband, on specified terms.

For the full text of the decision, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

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

Should Court Grant Restraining Order to Block Ex from Posting “Private Intimate Information”?

online_privacy_redbutton1

Should Court Grant Restraining Order to Block Ex from Posting “Private Intimate Information”?

The legal question in a recent case called Lawrence v Bassett was a straightforward one: Under the Ontario Family Law Act, is a court authorized to grant a Restraining Order preventing someone posting scandalous details about their Ex on the internet?

In that case, after the former couple split up the woman had asked for the court’s assistance to prevent the man from carrying out his threats to publish what the court termed was information about her “private intimate relations” on the Web. The woman considered these threats to be harassment, and felt they were intended by the man as a way of deterring her from seeking remedies from the court.

They ended up settling their differences, with the man voluntarily agreeing in writing to refrain from “disseminating, posting on the internet, distributing or publishing in any manner whatsoever (including in documents filed with the court), whether directly or indirectly, any statements, depictions, descriptions or commentary that reference by name or innuendo anything related to the [woman’s] personal intimate relations.”

The court granted a temporary Order in these exact terms, but when the woman wanted to have it extended, the matter came back before the court for its fuller consideration of the legal issues at stake.

The woman had sought the court’s help based on the provisions of the Ontario Family Law Act, which under section 46 allows the court to grant a Restraining Order if the woman had “reasonable grounds” to fear for her own safety. Looking at the section’s wording and at previous cases, it was clear that to succeed in getting the Order the woman’s fear:

1) had to be reasonable;

2) could be entirely subjective as long as it was legitimately-held; and

3) could involve psychological safety as well as physical safety.

Also, the purpose of this provision was to allow both parties the chance to conduct their litigation in “as reasoned an atmosphere as may be possible”, and to provide them with “some element of order in the context of difficult and acrimonious litigation”. This, the court emphasized, was especially important when there is a child involved, as was the case between the man and woman here.

In accepting the woman’s evidence that the man was using his emailed threats as a weapon to deter her from proceeding to court, the court noted that it had to be responsive to the changing nature of the type of conduct that could give rise to “reasonable grounds” to fear for one’s safety, as section 46 required. Courts also needed to bear in mind the “evolving nature of the internet and the profound, pervasive and permanent impact such communications could have.”

In this case, even if it was a subjective fear on her part, the woman had reasonable grounds to fear that without the Restraining Order her psychological and emotional safety were at risk. Since she also had custody of the child, it could be inferred that she had reasonable grounds to fear for his psychological and emotional safety as well, particularly given “the risk of this information leaving a digital footprint for years to come, of which the child may well become aware in the future.”

The court therefore extended the original Restraining Order indefinitely, until there was a further court order otherwise.

For the full text of the decision, see:

Lawrence v Bassett, 2015 ONSC 3707 (CanLII)

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

Top 5 Questions About Restraining Orders

ro1

Top 5 Questions About Restraining Orders

Given that failing relationships and the process of formally separating can be emotionally-harrowing at the best of times, it comes as no surprise that they can sometimes become volatile and even physical. In such cases, it may become necessary for one spouse or partner to obtain a Restraining Order against the other.

Here are the basic points to know:

1. Who Can Be the Subject of a Restraining Order? And Who Can Apply for One?

You cannot obtain a Restraining Order against just anybody. In the right circumstances you can only get a Restraining Order from Family Court against your spouse/partner (including same-sex partners), to whom you were formally married or with whom you lived together for any period of time. There is no requirement that you have had children together. However, you cannot obtain a Restraining Order against someone you were only dating, but did not live with.

2. When Can I Get a Restraining Order?

Anytime you are afraid that your spouse or partner (or former spouse/partner), will harm you or your children, you can ask the Family Court for a Restraining Order. Note that this request essentially launched legal proceedings, and the matter becomes part of the record and involves certain established processes.

The authority by judges to grant a Restraining Order is found in the Ontario Family Law Act, which sets out the requisite test. The person asking for the Order must show that he or she has “reasonable grounds to fear for his or her own safety or for the safety of any child that is in his or her lawful custody.”

3. Do I Need a Lawyer to Get a Restraining Order?

No. Still, it is a good idea to hire a lawyer to obtain a Restraining Order, particularly if your situation will soon devolve into a marital separation or divorce, scenarios involving child custody dispute, or if your need for a Restraining Order arises in circumstances that include issues around immigration.

4. What Does the Restraining Order Include?

The Restraining Order contains the conditions that your spouse must obey, which are set by the judge who grants the Order after considering all the circumstances. The Restraining Order can be general in scope (e.g. that he or she must stay away from you, or stay outside a prescribed distance from you), or can be more detailed and specific (e.g. that he or she is prohibited from coming to your home, the homes of your extended family members, your workplace, and other social or religious venues where you habitually go). It may also proscribe exceptions to these kinds of blanket prohibitions.

5. What Happens if the Restraining Order Is Not Complied With?

If your spouse fails to abide by the terms of the Restraining Order, then he or she can be arrested by the police, then criminally charged and prosecuted.

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.