When will a restraining order be granted in family law?
Given the conflict that often arises when couples separate, the Family Law Act provides for a mechanism to obtain a restraining order. A restraining order can prevent a person from contacting or coming within a certain distance from their ex-partner.
These orders can be very serious, as the breach of such an order can lead to criminal charges. As the court indicated in Marshall v Reid, 2018 ONSC 648, [t]he punishment for breaching a family law restraining order if the Crown proceeds by way of indictable offence under section 127(1) is up to two years of imprisonment. If the Crown elects to proceed by way of summary conviction, the maximum penalty is a term of imprisonment not exceeding six months, and/or a fine of not more than $5,000, pursuant to section 787(1) of the Criminal Code. Restraining orders in family law are governed by section 46 of the Family Law Act:
46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
In addition, subsection 3 outlines the specific orders a court is allowed to grant in this context:
1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate.
Noriega v Litke, 2020 ONSC 2970 provides a fulsome outline of how the courts have treated section 46. More specifically, the court was ascertaining the exact meaning of the statement, reasonable grounds to fear for his or her own safety, as outlined in section 46. As will be demonstrated, the court stated there need be both objective and subjective grounds to pass the threshold. In other words, the Applicant’s subjective feelings of fear alone are not enough to grant a restraining order. There also needs to be objective evidence to establish that the Applicant has a reason to fear the Respondent. Noriega v Litke elaborates on this point:
Must the Applicant's "reasonable grounds to fear" be assessed objectively or subjectively?
This issue was discussed by Justice J.P.L. McDermot in Fuda v. Fuda,  O.J. No. 138 (Ont. S.C.J.), in the following passage:
The test for whether a restraining order should be granted is, under both s. 46(1) of The Family Law Act and s. 35(1) of The Children's Law Reform Act is whether the moving party "has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody." This test was considered in Khara v. McManus,  O.J. No. 1968, 2007 CarswellOnt (C.J.) which was a trial of an application for a restraining order. Justice P.W. Dunn stated, at para. 33 as follows:
When a court grants a restraining order in an applicant's favour, the respondent is restrained from molesting, harassing, or annoying the applicant. It is not necessary for a respondent to have actually committed an act, gesture, or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
It therefore appears that there are both subjective and objective elements to the concept of "reasonable grounds to fear".
It may be that the Applicant's claimed fear of the Respondent is, to her, real. If that, alone, was all that was required to satisfy the subjective element of the "reasonable grounds to fear" test set out in s.46(1) of the Family Law Act, the Applicant will have made that out
I conclude that I cannot simply rely on the Applicant's bare assertions of fear. More is required for the Applicant to establish, from a subjective perspective, "reasonable grounds to fear" for her safety.
Justice F. Kristjanson considered the type of evidence required for an applicant to establish subjectively held "reasonable grounds to fear" for his or her safety in Yenovkian v. Gulian,  O.J. No. 6702, 2019 ONSC 7279 (Ont. S.C.J.), writing:
A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
The Applicant's evidence lacks specific examples of a "lengthy period of harassment" by the Respondent, intended to distress her, or examples of "persistent conduct" by the Respondent which can be said to be "reasonably expected" to continue.
Therefore, I find it to be questionable whether the Applicant has established that she subjectively has "reasonable grounds to fear" for her safety from the Respondent.
However, for the purposes of this motion, I am prepared to accept on a prima facie basis, that she subjectively felt that she had reasonable grounds to fear for her safety from the Respondent.
It appears then that the threshold to pass the subjective element of “reasonable grounds to fear” is extremely low. However, the same is not true for the objective element:
I next turn to whether the Applicant objectively had reasonable grounds to fear for her safety from the Respondent.
Criminal law is full of examples where a court must assess objectively whether someone had reasonable grounds for some action taken or for some belief held.
While this is not a criminal case, the consequences for the person against whom the restraining order is to be issued can include restrictions on movement and communication.
In R. v. Debot, supra, Justice Martin wrote:
On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged . . . The standard of "reasonable ground to believe" or "probable cause" is not to be equated with proof beyond a reasonable doubt or a prima facie case. The standard to be met is one of reasonable probability.
As I interpret what Justice Martin has written, when I am assessing the Applicant's evidence from an objective perspective, I do so to determine whether I am satisfied that it establishes "reasonable grounds" for the fear claimed by her.
Expressed differently, I must be satisfied that it is reasonably probable, based on that evidence, that the Applicant would fear for her safety from the Respondent.
The Applicant relied on three separate incidents to try and meet this threshold. The Applicant raised the fact that the Respondent had a prior conviction of criminal harassment “12 years ago” and his alleged use of violence before that. Finally, the Applicant complained that the Respondent attended her residence several months prior, to deliver the trial record. The court concluded that the first two issues were too remote to be relevant, absent any recent evidence of violence or threats of violence. On the third issue, the Respondent had a valid reason to be at the Applicant’s residence some months prior, to serve court documents. There was simply not enough evidence to establish that the Respondent engaged in harassing behaviour when he served the trial record on her. The court also raised the fact that the Applicant only brought the Motion for the restraining order several months after the alleged incident, and that if a person was truly concerned for their safety they would have moved a lot sooner.
The more recent case of JK v RK, 2021 ONSC 1136 provides more on the matter:
To get a restraining order, JK must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining order cannot be imposed lightly given the respondent's liberty interest and the potential for imprisonment if the order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19.
So, while the court must assess the applicant's subjective fear, it must only grant the order where that fear has a "legitimate basis": Fuda v. Fuda, 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While JK need not establish that RK has harassed or harmed her, I must be able to connect or associate RK's actions or words with JK's fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33.
Unlike the previous case, a temporary restraining order was granted in the current case. The court went into detail about the specific conduct the Respondent engaged in since separation. It appears that the court was particularly sensitive to the complexities of "family violence", and the need to de-escalate tensions:
I accept that JK is subjectively afraid of RK in relation to both herself and the children. In determining whether there is a "legitimate basis" for JK's fears, I consider RK's conduct before and after separation within the broader social context of family violence.
Despite pleading guilty to family violence-related offences nearly a year ago, RK has not completed any programming specifically aimed at understanding and addressing family violence. He continues to deny the seriousness of his actions and their impact on JK.
That said, RK's criminal convictions alone are insufficient to form a legitimate basis for JK's subjective fears: Noriega v. Litke, 2020 ONSC 2970 (Ont. S.C.J.). While I accept that JK took RK's threat seriously, that she was scared, and that it was the main factor prompting her to leave the relationship, I also note that the threat was made some 18 months ago, and that there have been no further criminal convictions since.
...[W]ith an informed understanding of the social context of family violence, I find that RK's conduct since separation, when coupled with his prior criminal convictions, forms a legitimate basis for JK's subjective fears for her own safety. While the incidents discussed below may seem innocuous, I accept JK's subjective interpretation of RK's conduct as controlling and threatening.
Since separation, RK has repeatedly been warned by JK's counsel and the police not to interfere with her. Indeed, he has consistently interpreted the various orders restraining his orders technically and not in the spirit in which they were intended. This started with RK dropping off unwanted, perishable gifts at JK's counsel's office and expressing his intentions to "win her back." It escalated to monitoring JK online and then making his surveillance known by sending her a toy that she had posted about on social media.
Despite JK clearly stating that she wished to abide by court-ordered supervised access provisions, RK evaded supervision to wave to her after an access visit, wrote to her to suggest that visits take place in her garage, and mused that they could communicate through the children rather than Wizard.
I am particularly troubled by RK's decision to send the teddy bears with concealed voice recordings. With unlimited options at his disposal, RK chose to send gifts that would audibly signal his continued presence in JK's private life. Before me, RK minimized the incident, calling it "innocent" and harmless." However, his advance efforts to insulate his conduct from legal sanction show that RK made a calculated decision to engage in actions that he knew would be unwelcome and even disturbing to JK.
I am also concerned that RK has tried to use these proceedings to intimidate and control JK. RK lavished the children with gifts, only to later claim an offset in child support payable to JK. RK threatened to withhold his "consent" to JK's obtaining a private cellphone line based on her lawyer's "tone" in correspondence. Rather than filing a response to this motion, RK moved for unsupervised access to the children and tried to have JK's motion adjourned.
In summary, I find that a temporary restraining order against RK would be a resource to protect JK for the duration of these family law proceedings: C. (D.) v. C. (M.T.), 2015 ONCJ 242 (Ont. C.J.), at para. 69. I find that RK's criminal convictions, together with his conduct since separation form a legitimate basis for JK's subjective fear for her own safety. I place significant weight on JK's own perceptions of the events after separation as they relate to risk, and the fact that family law proceedings can trigger an escalation in controlling and violent behaviour.
Obvious takeaways? Restraining orders in family law are not to be given out lightly. The consequences of breaching such orders are significant. However, the court has been clear in stating that so long as the Applicant has reasonable grounds to fear for their physical or psychological safety, this order will be granted. The threshold seems to be relatively low considering cases like such as JK v RK. As the court stated, [w]hile [the Applicant] need not establish that [the Respondent] has harassed or harmed her, I must be able to connect or associate [the Respondent's] actions or words with [the Applicant's] fears. For an order to be granted, there must be a rational basis to the Applicant's fear, backed by recent, rather than remote, evidence.