One way to obtain protection from the Court is in the form of a Restraining Order. You can obtain a Restraining Order against someone you are currently living with, against your spouse and against your partner, whenever you are concerned that they might harm you or your child(ren).
You can bring an Urgent Motion for a Restraining Order under the Family Law Act, which sets out the test. The test under the Family Law Act for a Restraining Order is whether you are fearful for your safety or the safety of any child(ren) that is(are) in your lawful custody, and that fear and concern is based on reasonable grounds.
Oftentimes, if children are in danger F.A.C.S (Family and Children Services) or C.A.S (Children’s Aid Society) will become involved. This can range in degrees of intrusiveness from a voluntary service agreement to a protection application in the Ontario Court of Justice or Superior Court of Justice.
You do not need a Lawyer to obtain a Restraining Order, but it is a good idea to get a Lawyer to represent you, especially if your matter will involve issues that go beyond just a Restraining Order. A Restraining Order is a Court Order that your spouse or whoever is the subject of the Order, must obey, and if one fails to obey the Court Order, then it is considered a crime where the perpetrator can be charged and prosecuted.
Violence can take many forms and can even be in the form of a spouse's text messages. In one case, Menchella v Menchella, the Court found that the father’s text messages were a form of violence, and the Court granted the mother's Motion to get exclusive possession of the Matrimonial home and evicted the father from the home. The reasoning was that the text messages sent by the father were something that any reasonable person would be intimidated and threatened by.
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