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.