During the COVID-19 crisis, many families may be struggling with the strict self-isolating protocols put in place as a result of the global pandemic. However, individuals who are being subjected to emotional or physical abuse should be aware of their options both during and after the COVID-19 crisis to ensure both their and their children’s safety.
According to the March 15, 2020 Notice to the Profession, the Ontario Superior Court of Justice will only hear urgent family law matters such as:
- requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
- dire issues regarding the parties’ financial circumstances (including for example the need for a non-depletion order);
- in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
Restraining order
A restraining order applies only to a partner, spouse or previous partner or spouse (including same sex – couples) of a relationship.
The restraining order is granted by a judge which prevents one party from harassing or communicating with the other party or children. A restraining order is granted under s.46 of the Ontario Family Law Act and under s. 35 of the Children’s Law Reform Act; therefore, is only valid in Ontario. A restraining order can be obtained from your local family court without the knowledge of the other party and it will be enforceable by the police department.
- Both statutes require that the person seeking a restraining order must have reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody;
- It’s not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order; it is enough that an applicant has a legitimate fear of such acts being committed;
- There can be fears of the applicant that are of a personal or subjective nature, but they must be related to a respondent’s actions or words; a court must be able to make this connection for these fears to weigh in the analysis; and
- The fears of the applicant may be equally for psychological safety, as well as for physical safety.
A restraining order can be granted with different conditions depending on the circumstances of the relationship. These can include:
– preventing one party from contacting the other party and if applicable, the children;
– preventing one party from attending at the family home or children’s school or spouse’s place of work; or
– requiring one party to surrender any weapons to the police and preventing one party from possessing certain property i.e. drugs or alcohol.
The recent case of Stapley v Stapley 2020 ONSC 2337 is an example of the Court’s granting a restraining order during the COVID-19 crisis. The parties married in 2013 and shared one child. They had separated several times and following allegations of inappropriate touching by the father, access to the child was limited to supervised access which was supervised by the mother. The mother brought an urgent motion for a restraining order following several altercations where she alleged the father choked her, made threats to commit suicide, sent threatening text messages and emails and made threats kill anyone the mother dated.
Based on concerns for the mother and child’s safety, the court granted a temporary, without prejudice restraining order and ordered that the child reside with the mother until the father had the opportunity to present his evidence to the court.
Peace bond
A peace bond can be granted in respect of any individual including someone you have had a relationship with.
A peace bond is a court order from the criminal court which orders a person to keep the peace, remain on good behaviour and obey any conditions ordered by the court. A peace bond can be issued for up to one year and is valid in every province. A peace bond can be granted when a party fears on reasonable grounds that another person will hurt him or her, damage his or her property, harm his or her spouse or child and has successfully applied to a justice of the peace to sign a peace bond based on this fear.
A peace bond does not result in a criminal record when issued, however if a peace bond is issued under the Criminal Code, a breach of any of the conditions is a criminal offence.
Conditions of a peace bond are similar to those of a restraining order, such as: ordering the person to have no contact with you and/or your family members or friends; stay away from your home, place of employment, children’s school, parent’s home etc.; and not possess any firearms or ammunition.
Evidence required
If you wish to obtain a restraining order or peace bond, you will need to provide that the order is reasonable, the court will request the following evidence to support the request:
- A detailed account of each time the person has stalked or threatened you,
- Any family doctor or hospital records, pictures, and communications,
- If it applies, any evidence that shows harm to the children.
How can we assist
Our experienced family lawyer can assist parties seeking to bring an urgent family law motion. At Gilbertson Davis LLP, we advise and represent clients on a full range of family law matters, including separation, divorce, custody and access, mobility issues, interjurisdictional issues, variations and urgent motions. Contact us for a consultation regarding COVID-19 and access, or any family matters related to COVID-19.
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