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)
