The topic of restraining orders and how they are obtained is a largely complex legal subject. While many Canadians believe restraining orders to be straightforward and universally available, the truth of the matter is quite different. In Ontario, there are two forms of restraintrelated relief that can be sought by an individual: the family law restraining order and the criminal peace bond. As there are very different requirements and processes for obtaining relief under each process, it is vital that the Applicant understand when each process is available, what the process entails, and the implications of such relief.
Peace bonds are granted pursuant to s. 810 of the Criminal Code of Canada and are only granted where an individual has a reasonable belief that another individual will cause personal injury to him or her, their partner, or will cause damage to property. Peace bonds are sought by way of Application filed with the Ontario Court of Justice and are typically heard before a Justice of the Peace.
There are two steps required in a peace bond proceeding. Firstly, the Applicant must provide an Application containing sworn evidence in Affidavit form which sets out the basis for the Applicant’s reasonable belief that the Respondent will likely cause the injury or harm articulated above. Where a Justice of the Peace is convinced based on the Applicant’s evidence that the necessary criteria are met, the Court will move to the second step which involves issuing a summons to be served on the individual against whom the Applicant seeks the order to be made (the Respondent). The summons will provide an initial court date at which the Respondent must attend.
At the initial court date, the Crown will be provided with the option to intervene and assume prosecution of the case, which is generally limited to cases where there is a “compelling public interest” at stake, such as in cases of domestic violence. Should the Crown not intervene and should the Respondent not consent to the order being made, the Applicant will be required to prove his/her own case on a balance of probabilities at a subsequent court date. Where the Applicant successfully proves his/her case, a Justice of the Peace will issue a peace bond which may include conditions limiting the Respondent’s activities for a period of twelve months. Should the Applicant desire that the peace bond be reinstated after the twelve-month period, he/she will have to reapply to the court by undergoing the same process.
As a potential Applicant seeking to commence this process, it is important to understand that the Respondent is entitled to participate in the proceeding since the granting of a peace bond results in a deprivation of the Respondent’s liberty. As such, the Applicant needs to be aware that the Respondent will be given notice of the process and provided with a chance to defend his/her case. It should also be noted that even where an Applicant is successful in obtaining a peace bond, courts are reluctant to award legal costs to either party, which can be a significant deterrent to commencing such proceedings.
Family Law Restraining Orders:
In contrast to the criminal peace bond process, restraining orders are sought under s. 46 of the Family Law Act (FLA). To obtain relief under the FLA, the Applicant must demonstrate that he/she has reasonable grounds to fear for their safety or the safety of a child in their lawful custody. In contrast to peace bonds which can be applied for by anyone meeting the “reasonable apprehension” criteria, family law restraining orders can only be sought against a limited category of individuals, which includes: spouses or former spouses, and other persons with whom the Applicant cohabitated.
To obtain a family law restraining order, the individual Applicant must file a family law Application accompanied by a Canadian Police information Centre (CPIC) Restraining Order Information Form. While in some cases where the Applicant can demonstrate “dire circumstances” he/she can bring an “urgent motion” to seek relief, in the majority of cases the Applicant must undergo the normal Applications process.
Where granted, a family law restraining order can include numerous conditions placed on the Respondent, such as prohibitions on communication or contact with the Applicant, or attendance at the Applicant or their children’s work/school or home. Violations of such conditions can result in criminal charges being laid against the Respondent.
In conclusion, when contemplating the utility of a peace bond or family law restraining order, individuals must be aware of the stringent requirements, the cost, and the time required to obtain such. If you or someone you know are considering seeking one of the above forms of restraint-relief, it is advisable that you seek legal advice to ensure you meet the appropriate requirements for each category, and fully understand the process and implications of the relief being sought.