“Family violence” is a term that includes many different forms of physical or psychological abuse or neglect. It can be experienced by adults or children in a family.
Many forms of family violence are crimes, including:
- physical abuse (such as hitting, punching, kicking, burning, cutting, stabbing, forcibly confining or shooting);
- sexual abuse (such as any unwanted sexual touching or sexual activity and any sexual conduct with children)
- some forms of psychological abuse (such as threatening violence, destroying property, stalking),
- financial abuse (such as taking a pay cheque, failing to provide the necessaries of life).
Other forms of family violence are not crimes but are often signs that violence will get worse (such as yelling, humiliating, controlling movements).
Family violence can have serious – and sometimes fatal – consequences for victims and those that witness the violence.
If your spouse physically or psychologically abused you or your children, your family’s future safety becomes of primary concern. There are many people and organizations available to help you in this situation, such as lawyers, social workers, counsellors, support groups or your local shelter or transition house.
Traditional mediation or counselling with your spouse may not be appropriate in these circumstances. However, in some provinces or territories, specialized counselling procedures have been developed to support couples when there are concerns about violence. Working together doesn’t always mean sitting in the same room.
Anyone facing physical, emotional, financial or other abuse from a spouse, parent or other member of their family should seek assistance immediately. Here are some organizations that can help.
Common 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.
Can Text Messages Amount to “Violence”?
The question for the court in an interesting case called Menchella v. Menchella was whether one spouse’s text messages can amount to “violence” against the other, for the purposes of determining which of them should have exclusive possession of the matrimonial home after they separate.
The father and mother separated after 15 years of marriage. They had one child together, who was 12 years old. However, after they separated the father continued to live in the former matrimonial home (which was solely owned by the mother) while they untangled their financial affairs. The mother also lived there with the child, and had been unsuccessful on an earlier attempt to get an order for exclusive possession and have the father ousted.
She came back to court a second time to try for the same order. This time, she added a new ground: she claimed that the father’s abusive texts to her had amounted to “violence” which – under s. 24(3) of the Family Law Act – was one of the specific factors that a court consider in granting an order for exclusive possession in her favour.
The court found that the father’s vitriolic texts clearly met the threshold for violence for the purposes of the Family Law Act section authorizing a grant of exclusive possession. The texts had been sent to the mother over the course of a full week, were threatening and intimidating, and were not proportional to the situation. A reasonable person would have found them to be injurious. Moreover, they were potentially harmful to the child.
The mother was therefore awarded exclusive possession.
Legal Advice for Victims of Domestic Violence
Legal Aid Ontario can provide authorization for a two-hour consultation with a family law lawyer through a form called “Advice Lawyer Family Violence Authorization”.
Community legal clinics, student legal aid societies, and women’s shelters should have these forms to give to abused women. Contact the women’s shelter in your community or Legal Aid Ontario (1-800-668-8258 or www.legalaid.on.ca) for the phone number and location of the legal clinic or student legal aid society nearest you.
Family Violence Initiative (Department of Justice Canada)
National Clearinghouse on Family Violence
Metropolitan Action Committee on Violence Against Women and Children (METRAC)
Provides information on violence and violence prevention, and referrals for women and children experiencing violence.
Legal Advice for Victims of Domestic Violence
Victims of domestic violence can get authorization for a free emergency two-hour appointment with a lawyer as part of Legal Aid Ontario’s services.
Assaulted Women’s Helpline
This province-wide crisis hotline offers crisis counseling, emotional support, safety planning, and referrals to shelters and legal resources. Operates 24 hours a day, 7 days a week. Services are available in many languages.
Barbra Schlifer Commemorative Clinic
Free counseling, and legal and interpreter services for women who are survivors of violence.
416-323-9149 (accepts collect calls)
Victim Support Line, Ministry of the Attorney General
Counselors provide information and referral to victims of crime in Ontario, Monday to Friday, 8 a.m. to 10 p.m. Automated information is available 24 hours a day, 7 days a week.
Criminal Injuries Compensation Board
Administers compensation payments to people who are victims of violent crime in Ontario.