Emergency Orders and Safety in an Ontario Divorce

If you are afraid of your spouse, the ordinary pace of a divorce can feel impossible. The usual path involves forms, deadlines and conferences, and none of that matters if you are not safe tonight.

This article explains, in general terms, the tools Ontario family courts have for urgent situations: motions without waiting, restraining orders, and orders about who stays in the home. It is not a substitute for advice on your own situation. If you are in immediate danger, call 911 first.

Safety comes before paperwork

The province's safety planning steps for people thinking of leaving include opening a bank account in your own name, saving money, gathering identification and documents, and packing an emergency bag. The listed contacts include 911, the Assaulted Women's Helpline, the Victim Support Line, 211 and Family Court Support Workers.

Think about how you will keep these things out of reach of your spouse, and who you trust to hold copies. A divorce case can wait a few days. Your safety plan should not.

• Identification for you and your children
• Banking information and any account in your own name
• Marriage certificate, if you can safely take it
• Notes of incidents with dates, and any messages or photos
• A trusted person who knows your plan
• Phone numbers for 911, the Assaulted Women's Helpline, the Victim Support Line, 211 and Family Court Support Workers

Urgent motions and temporary orders

Generally, a party must attend a case conference before bringing a motion for a temporary order. There are exceptions for urgency, such as an immediate safety risk, and for hardship, such as needing a support order for basic living conditions.

People commonly ask for temporary orders about child or spousal support, parenting schedules, travel with a child, or who lives in the family home. A judge may make a temporary order at the end of a motion, and it stays in place while the case continues.

Be careful about calling something urgent when it is not. If a judge finds a motion was brought before a conference when that was unnecessary, the judge may order the moving party to pay the other party's costs for the motion. A genuine safety concern is the kind of situation the urgency exception exists for, but whether your facts qualify is worth confirming with a lawyer.

Motions without notice

In some cases a motion can be heard before the other person knows about it. Urgent motions without notice use Form 14 (Notice of Motion) and Form 14A (Affidavit) where the other person's whereabouts are unknown, there is immediate danger of harm or removal of the children from Ontario, or giving notice could have serious consequences. The other person is served afterward.

The affidavit must be sworn or affirmed. It is your evidence, so it should be specific: what happened, when, and why you need the court to act now.

Restraining orders and the family home

A restraining order is available in family court if you were married or lived together for any period, or have a child together. It can be general, meaning stay away, or specific, such as no contact at the home, workplace or children's school. It must be served on your spouse as soon as possible, and someone else can serve it. Keep a copy and call the police if it is breached.

A married person can also ask the court for exclusive possession of the family home, which would let you stay and require your spouse to leave, even if the spouse owns the home. The judge considers past violence, whether there is another suitable place to live, the children's best interests, and both parties' finances.

The CPIC Restraining Order Information Form is only available at the family court counter.

How safety affects parenting decisions

In parenting matters the court considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Family violence and any related civil or criminal proceedings or orders are among the factors.

When assessing family violence, the court considers its nature, seriousness and frequency, any pattern of coercive and controlling behaviour, whether the child was directly or indirectly exposed, harm or risk of harm to the child, whether anyone has been made to fear for their safety, and steps taken to prevent further violence. This is why careful, dated records can matter.

The court also applies the principle that a child should have as much time with each spouse as is consistent with the child's best interests. The child's safety and family violence are among the matters the court weighs when deciding what those best interests are.

What to do next

• If you are in danger now, call 911.
• Contact the Assaulted Women's Helpline, the Victim Support Line, 211 or a Family Court Support Worker for help planning.
• Gather and safely store your documents and any records of incidents.
• Speak with a lawyer about whether your situation fits the urgency exception or the without-notice route.
• Ask about the divorce itself later. A divorce needs one year of habitual residence in Ontario and one year of living separate and apart. How those timelines relate to asking for protection now depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions