Restraining Orders

When a couple separates, a division of the family property usually takes place. If one spouse tries to sell or mortgage part of the property before a final division occurs, an equal division may become impossible. To prevent this, the other spouse may ask the court for a restraining or preservation order against the first spouse, in order to protect the property until the parties can work out a fair division.

For example, if a separated couple owns a cottage property, held in the name of the wealthier spouse, that spouse may sell the cottage. If the court orders that spouse to transfer the cottage to the other spouse in order to equalize the family assets, the judgment cannot be carried out. This means that the other spouse doesn't receive a fair share of the family property. However, the other spouse could prevent this problem by obtaining a restraining order preventing any dealings with the cottage. The order could also prevent the wealthier spouse from increasing the amount of any mortgage registered against the cottage. This would preserve the equity in the cottage until the final division of the family assets took place.

Most provinces have family law legislation allowing judges to grant restraining orders to preserve family assets if one spouse can prove to the court why the order is necessary. To maximize the benefit of the order, the spouse should request it as soon as possible if he or she has concerns that the other spouse may "raid" the family assets.

When a couple separates, sometimes one spouse harasses or annoys the other spouse, particularly if the other spouse ended the relationship because of abuse. In these circumstances, a personal restraining order acts to restrain one spouse from harassing the other spouse. This type of order can simply prohibit one spouse from having any contact with the other spouse, or have specific conditions such as forbidding contact with the other spouse except to allow access to the children at a certain time.

As with restraining orders to preserve property, most provinces have family law legislation allowing judges to place restraining orders on one of the spouses to protect the other from abuse. This generally takes place in the context of a family law action. The lawyer of the spouse needing a restraining order presents the case to the judge on a specified date, using witnesses or affidavits. Once the other spouse's lawyer has presented his or her case and arguments have been made by both sides, the judge decides whether to grant a restraining order. The order will include the conditions that the harassing spouse must follow, based on the particular circumstances of the case. If the harassing spouse doesn't obey the order, he or she may be arrested by police without a warrant, and face a fine or time in jail.

Restraining orders made in a family court action are often only valid in the province in which they are made. To obtain an order valid throughout Canada, the abused spouse may apply for a peace bond. However, a peace bond is not obtained through a family law action, but by using the provisions of the Criminal Code.

Anyone who reasonably believes that another person intends to injure them, their spouse or their children may seek a peace bond through the courts. In the case of couples who separate, spouses who fear injury may appear before a judge or justice of the peace to tell why they believe the other spouse will injure them or their children. If sufficient evidence exists, the court sets a date for a hearing. At the hearing, the Crown attorney presents the case against the harassing spouse, who also has the opportunity to present his or her case to the court. If the Crown wins the case, the judge orders the harassing spouse to enter into a peace bond with a recognizance, usually in the amount of $500 or $1000. As well as requiring the spouse to keep the peace, the peace bond lists the conditions that the spouse must follow, and includes the date on which the peace bond expires. Spouses who disobey the requirements of the peace bond forfeit the money, and the judge may fine the spouse or order time in jail.

Peace bonds have some advantages over restraining orders. Since the Crown attorney presents the case when a spouse seeks a peace bond, the spouse doesn't have to pay for legal representation, as is the case when the spouse seeks a restraining order. The peace bond is valid throughout Canada, while the restraining order is only valid in the province in which it was made. However, the abused spouse loses control of the case when seeking a peace bond since the Crown manages it. Since disobeying the peace bond could result in a criminal record, it may increase the tensions between the spouses beyond the effect of a restraining order.

Spouses who oppose a restraining order or peace bond should retain a lawyer as soon as they receive notice of a hearing. They have an equal opportunity to present their side in court. They may call witnesses, present affidavits and make arguments to show why they oppose the restraining order or peace bond. If they prove their case, the court will not make an order against them, and may order the other spouse to pay their legal costs.

Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.