By Pamela Cross, LLB
Pamela Cross is a feminist lawyer. She provides family law information training for violence against women and other community organizations and is a regular law reform consultant to the provincial government.
She can be reached at [email protected]
Background:
Abused women and their advocates in
In 2000, the provincial government then led by Conservative Premier Mike Harris, introduced the Domestic Violence Protection Act, after a summer in which an unusually large number of women had been killed by their former husbands. Despite the good intentions of this legislation, there were serious concerns with it from the beginning, and it was never enacted. Since then, women have continued to rely on the provisions in the Family Law Act and the Children’s Law Reform Act to try to keep themselves and their children safe.
On
Once the regulations have been developed, it will become the law in Ontario. Although no firm date has been set for this, it is hoped the new provisions will be effective by early 2010.
Bill 133 addresses the following issues:
Restraining orders:
Enforcement:
As noted above, one of the biggest difficulties with restraining orders is effective enforcement. At the present time, a breach of a restraining order is punishable under the Provincial Offences Act. Bill 133 will make a breach punishable under the Criminal Code.
A man who breaches a restraining order can be arrested by the police, charged with a criminal offence and held for a criminal bail hearing. His case would then proceed in criminal court and, if he is found guilty, he would be liable to potentially more serious penalties.
It is important to note that the amendments proposed in Bill 133 do not create a section in either the Family Law Act or the Children’s Law Reform Act stating this explicitly. Rather, Bill 133 revokes sections in each Act that allow the breach of a restraining order to be prosecuted under the Provincial Offences Act. By default, these breaches will now be governed by the Criminal Code, section 127.
Section 127 of the Criminal Code states:
“Every one who, without lawful excuse, disobeys a lawful order made by a court of justice ...is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of an indictable offense and liable to imprisonment for a term not exceeding two years."
Who can apply:
The Family Law Act currently restricts restraining orders to spouses, former spouses or people who have cohabited for at least three years. Bill 133 expands this to include people who have lived together for any period of time:
Section 48(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.
This will ensure that women, no matter how short-lived their cohabitation arrangement, can have access to the safety of a restraining order.
The Children’s Law Reform Act definition of who can apply for a restraining order remains unchanged -- either parent of a child may seek such an order.
Required evidence:
A woman will be able to obtain a restraining order by making an application to the family court, where she can show that she "has reasonable grounds to fear for... her own safety or for the safety of any child in... her lawful custody." (Section 46 (1))
This language requires that the person applying for the restraining order show some evidence of her need, which should help protect against malicious restraining order applications being brought by abusive men, but does not require complicated evidence and maintains the "on the balance of probabilities" standard of proof.
Provisions and forms:
Bill 133 requires that restraining orders be made "in the form prescribed by the rules of court." In other words, all restraining orders will appear on a standard form order, which will make them more easily understood by women and will simplify enforcement by the police.
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
The Bill also sets out specific provisions that judges can include in a restraining order:
Section 46 (3): A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant and 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.
Bill 133 also introduces new provisions to limit inappropriate behaviour by people involved in family court proceedings:
"… the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application is dealt with justly."
This should be of great assistance to women whose partners use the family court proceedings as an opportunity to engage in ongoing legal bullying. In cases where the judge makes this order and it is breached by the abuser, it would provide good evidence to support any application the woman might decide to make for a restraining order in the future.
To support these changes to the legislation, the government plans to produce a plain language guide to restraining orders. This will be a useful resource for all those who are applying for a restraining order, but particularly for the ever- increasing numbers of women who proceed through family court with no legal representation.
Custody and Access:
Bill 133 introduces some interesting reforms relating to custody and access applications under the Children’s Law Reform Act.
In 2008, a young child died after custody had been given to a non-parent. The custody order was made with the consent of the child's mother, and no evidence was introduced.
Now, evidence will be required in all custody cases:
Section 21(2): An application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing,
(a) the person's proposed plan for the child’s care and upbringing;
(b) information respecting the person's current or previous involvement in any family proceedings, including proceedings under Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and
(c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24 (2), (3) and (4) in determining the best interests of the child.
In addition to this provision, which applies to any person seeking custody of or access to a child, further evidence will be required where the person seeking custody is a non-parent.
In addition to this provision, which applies to any person seeking custody of or access to a child, further evidence will be required where the person seeking custody is a non-parent.
In such cases, the person will have to file the results of recent police and child protection records checks with the court. As well, the clerk of the court will have to provide information about any current or previous family proceedings involving the child or that person.
Taken together, these changes will increase the safety of children, particularly in cases where non-parents are seeking custody.
Under Bill 133, judges will have greater powers to control inappropriate or harmful behaviours by parents. Custody and access orders may contain provisions such as:
· limiting contact or communication between the parties or between a party and the child
· prohibiting a person from engaging in specific conduct in the presence of the child or when caring for the child
· prohibiting a party from changing the child's residence, school or day care facility without the consent of the other party or an order of the court
· prohibiting a party from removing the child from
· requiring that the child's passport, health card or other documents be delivered to the court or to a person specified by the court
· requiring a party to give information or to consent to the release of information about the health, education and welfare of the child to another person
· requiring a party to facilitate communication by the child with another person in a manner that is appropriate for the child
Child Support:
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Presently, child support legislation expects parents to provide annual financial information to one another. Often, the payor parent does not voluntarily do so, and the recipient parent (most often the woman) does not pursue the information. She may not be able to afford to do so or may not want to risk further harassment or abuse by her partner.
Bill 133 makes it mandatory for this information to be provided on an annual basis, thus relieving women of the onerous task of pursuing it on their own or of not receiving increases to the level of child support to which they may be entitled.
Children’s Surnames:
It will now be possible for a parent whose name does not appear on the child's birth certificate, but who can establish that s/he is a parent of the child, to apply to the court to have her/his surname added to the child's surname. The court will consider whether this is in the child's best interests before making its decision.This Fact Sheet contains general legal information only. It is not a legal document, nor is it a replacement for legal advice. Anyone in a situation involving an issue of law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes. A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.
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Resource details:
By Pamela Cross, LLB
January 26, 2009
Type/Format of Resource: Other
Category/Topic of interest: Woman Abuse; Custody and Access; Family Violence; Legal Issues for women fleeing violence
Population Group: Victims / Survivors; Health Care Service Providers; Social Service Providers; Legal Service Providers; Criminal Justice ; Education
Language of Resource: English
Year of Publication: 2008
Relates to Current Project: Family Law Education for Women; Preventing and Responding to Violence against Women Through Technology Enhanced Education; Understanding Family & Immigration Law through E-Learning