"protective orders"
Mary tells us that although she feels safe while at the shelter, she is afraid that she will be unprotected and in danger once she leaves the shelter and is on her own. She is given information about protective orders: legal recourses that a person can take to better protect themselves from potential harm. Below is an explanation of two types of protective orders: restraining orders and peace bonds, followed by a list of frequently asked questions.
"restraining orders"
Mary tells us that she obtained a restraining order to protect her and her children's safety. Below is an explanation of restraining orders and peace bonds, followed by a list of frequently asked questions (FAQs) in the area of safety.
Restraining Orders
A court that deals with civil law makes a restraining order. Civil law includes such matters as custody, divorce and division of matrimonial property. The civil court can grant an order to restrain a person from contacting or being near others who fear for their safety. If the person who has been restrained by the order breaks the terms of the order, he can be arrested and imprisoned or fined.
If you are going to court to obtain custody of your children or to get a divorce, you can ask for a restraining order as part of the divorce or custody action. You can apply for a restraining order by itself, however. If you are in a crisis situation, having just left home with our children, you can apply for an order for interim custody of your children and a restraining order at the same time.
It is possible for an order to be obtained within 24 hours of meeting with a lawyer. You will have to make a written statement, which you will swear is true. It is called an affidavit and is prepared at your lawyer's office. Your lawyer will take the affidavit to court together with a copy of the order that she will ask the court to grant.
The order can include terms that name places where the abuser must not go, for example, your home, a shelter, your children's school. The order can forbid him to contact you in any way. Be sure to tell your lawyer about any special terms you may need in the order.
When the court considers the application for the first time it is not necessary for the abuser to be present. In legal terms it is called an "ex parte" application, which means that one side can make an application without telling the other party. The order that the court makes will have to be given to the abuser.
Although the order will take effect immediately, it will set a date for the order to be reviewed. On the date for review the abuser has the opportunity to attend court and state any reason why the order should not continue. If his argument fails or if he does not show up, the court will allow the order to stand for a given period of time, for example, six months. It is possible to ask for an order to be renewed.
It is possible to apply for a restraining order yourself, however if this is an emergency you will find it more efficient to get some legal help. There are agencies that can help, for example, in Edmonton there is the Protection and Restraining Order Project (PROP) that can aid those with a limited income to get legal assistance. You can phone 423-8920 to see if you meet their financial guidelines. They will put you in touch with a lawyer for a minimal cost of about $75, which is paid in advance. This fee will cover the costs of getting the restraining order.
If you do not meet the financial guidelines or if there is no agency to help in your area, you may still be eligible for Legal Aid. Legal Aid also has financial guidelines. If you are eligible for Legal Aid you will get assistance with legal fees.
If you do not qualify for financial help, talk to your lawyer about your financial situation and he or she may be able to help you with a payment plan for fees. Ask to be billed on a regular basis, so that you know what kind of costs to expect.
Once you have the restraining order you should carry a copy with you at all times. You should also leave a copy at your children's school or day-care. If the abuser breaks the terms of the order and tries to approach you, you may have to call the police. If you can show the police a copy of the order it will make it easier for them to arrest the abuser. Even if you have a restraining order, you should still take steps to keep yourself and your children safe.
Peace Bonds
A peace bond is an order that is made by the criminal courts. It is an order that requires someone to keep the peace and obey any other conditions that the court puts in the order. A peace bond can be used, for example, as a form of punishment when someone has committed a minor criminal offence. The offender can be bound over to keep the peace for up to one year, which means that they have to stay out of trouble and not be charged with any criminal offences.
A peace bond can also be used in the situation where a person fears for her safety or the safety of her children or property. This might occur where someone is being harassed or stalked by another or when someone is being abused in a domestic situation. A court can grant a peace bond that requires the abuser to have no contact with you or your children and to stay away from specific locations.
You do not need your own lawyer to apply for a peace bond and so the process can be less expensive than applying for a restraining order. Your role in the process is as a complainant. You make a formal complaint to those who work in the criminal justice system and they then handle the matter. This can mean that you might not be so well informed about what is going on as when you have your own lawyer applying for a restraining order. The process will also take longer.
Different areas may have slightly different procedures to make a complaint. The police or the local Provincial Court, Criminal Division will be able to tell you what to do in your area. In Edmonton, for example, you have to call the Provincial Court- Criminal Division and ask for an appointment with a Justice of the Peace. The Justice of the Peace will take down details of your complaint and forward it to the Crown Prosecutor's Office, which will determine if there are grounds for a peace bond. If there are grounds a summons is issued for your abuser to appear in court. You have to be prepared to appear in court and give evidence why you are seeking a peace bond. If your abuser does not show up the court may issue the peace bond if satisfied there are grounds.
A peace bond can be granted for a maximum of twelve months. As with a restraining order, you should make sure that you carry a copy with you at all times and leave copies at your children's school and day-care. Remember also to continue to take steps to guard your own safety and that of your children.
P1. I want to keep my abusive partner away from me. What
can I do? (October 6, 1998) You can apply for an order from court to state that your
partner should not come near you or bother you. In most
jurisdictions there are two types of order that will do this.
One is a restraining order and one is a peace bond. Some provinces have legislation that provides for other
types of order, e.g. in Saskatchewan the Victims of
Domestic Violence Act.
P2. What is the difference between a restraining order and
a peace bond? (October 6, 1998) A restraining order is granted by a court that deals with
civil law such as divorce and custody.
A peace bond is granted by a criminal court that deals
with criminal offences such as assault or harassment.
P3. How will I decide whether to apply for a peace bond or
a restraining order? (October 6, 1998)
You can apply for a restraining order or a peace bond
alone. In practical terms the order you apply for will
probably be decided by what other kinds of help you are
seeking from the courts.
For example, if you have left an abusive situation with
your children and are seeking a custody order, it will be
appropriate to ask for a restraining order at the same time.
If your partner is being charged with an offence in the
criminal courts such as assault you can also apply for a
peace bond to keep him away from you and your children.
P4. How can I get a restraining order? (October 6, 1998)
You have to apply to court for a restraining order. The
civil courts rather than the criminal court make a
restraining order.
A restraining order can be attached to another action such
as divorce or custody, but you can also apply for a
restraining order alone.
It is possible for you to apply for the order yourself. In
some jurisdictions the courts have information to guide you
through the process. You may feel, however, that you require
the assistance of a lawyer or an agency, particularly if you
are also asking for custody of children.
P5. How will I find someone to help me apply for a
restraining order? (October 6, 1998)
In some areas there are agencies to assist you in
obtaining a restraining order, e.g., in Edmonton there is the
Protection and Restraining Order Project. Even if the agency
cannot give you financial help, it will assist you to find
legal and community help.
If you decide to consult a lawyer, make sure that
you consult a lawyer who practices in the area of family law.
P6. How can I find a lawyer to help me? (October 6, 1998)
There are several ways that you can find a lawyer.
Remember that you need to consult a lawyer who practices
in the area of family law.
P7. How much money do I need to get a restraining order?
(October 6, 1998)
It will depend on who is doing the work for you and
whether the order is part of another action such as divorce
or assault.
As stated above, it is possible for you to apply for a
restraining order yourself. If you are only applying for a
restraining order there may be no court fees, but you will
need to employ process servers to serve the order on your
abuser. This can become expensive if your abuser is hard to
find. An agency or a lawyer will likely have an arrangement
for a bulk rate with a process server, which may save you
money in the long term.
An agency such as the Protective Restraining Order Project
in Edmonton has eligibility guidelines, so that if you
qualify you will receive the services of a lawyer for a flat
rate.
Even if you are using a lawyer you may be eligible for
Legal Aid. If you have concerns about the cost of your lawyer
you should be sure to discuss this with her. The lawyer may
agree to reduce their fees or to accept payment by
installment.
P8. How long does it take to get a restraining order? (October 6, 1998) An application can be made very quickly. It could be made
within 24 hours of you meeting with a lawyer.
P9. What kind of order will the court make? (October 6, 1998)
The court needs to have the information from you and your
lawyer in order to know what is necessary to protect you. The
order must be worded very carefully so that it can be
enforced effectively.
In practice your lawyer will prepare an order based on the
information you tell her. Your lawyer will then ask the court
to approve the order based upon the evidence of abuse given
to the court.
P10. What kind of evidence will the court need? (October 6, 1998)
The court will require evidence in order to justify
restricting the liberty of another person. It will help if
you have kept a record of times when you or your children
have been abused and how. There will also be records if you
have sought medical help or counselling or if the police have
ever been involved.
You should also consider whether there are any witnesses
who could help you. Even though the abuse only occurred in
private your family and friends may have noticed more than
you think.
P11. What kinds of things can I ask my lawyer to put in the
order? (October 6, 1998) Within reason, whatever is necessary and practical to keep
you and your children safe.
For example,
P12. His family and friends have in the past harassed me to talk to him. What can I do to prevent this? (October 6, 1998)
It is possible to request that the restraining order be
issued against more than one person. The court will
require clear evidence that this is necessary. You will
therefore need to show the court why the other people should
be prevented from contacting you or your children.
Harassment can also be a criminal offence. Harassing
behaviour can include repeatedly visiting, calling or writing
to you or doing something that threatens you or someone in
your family. Once again it is important to make records of
any incidents of harassment, so that if you have to report it
to the police you have details to give them.
P13. How long does a restraining order last? (October 6, 1998)
In very exceptional cases a restraining order can last
indefinitely. More usually an order will be made for six
months. If necessary, it can be renewed when it expires.
P14. Should I do anything with my copy of the order? (October 6, 1998)
Yes. You should keep a copy with you at all times. If your
abuser tries to contact you or see you, you will be able to
show the police that the order has been violated. If the order includes provisions about your children, you
should leave a copy with their school principal or day care
director so that they can request the order be enforced if
necessary.
P15. What is a peace bond? (October
6, 1998)
A peace bond is an order made by a criminal court, which
orders a person who has been harassing or abusing you to keep
the peace and be of good behaviour. A peace bond can order a
person not to contact you or your family and to keep a
certain distance from your home, school or workplace. A judge
may also impose extra conditions such as forbidding your
abuser from carrying any weapons.
P16. How can I get a peace bond? (October
6, 1998)
It is possible to apply for a peace bond yourself or seek
the assistance of a lawyer. The procedure may vary in
different areas. If you call the police or the criminal
division of the courthouse they will tell you how to do it.
You may need a police file number and you will probably
have to make an appointment with a Justice of the Peace who
will assess whether you have grounds for a peace bond.
If you are able to go ahead with your application a
summons is sent to your abuser to appear in court. If he does
not show up, the peace bond may be issued if the court agrees
that you need protection. If your abuser does show up, he may
oppose your application.
P17. What do you have to show to the court in order to get
a peace bond? (October 6, 1998)
You have to show that you believe this person will cause
injury to you or your children or damage your property. As
with a restraining order you will need evidence to show why
you fear for your safety.
The court will require evidence in order to justify
restricting the liberty of another person. It will help if
you have kept a record of times when you or your children
have been abused and how. There will also be records if you
have sought medical help or counselling or if the police have
ever been involved.
You should also consider whether there are any witnesses
who could help you. Even though the abuse only occurred in
private your family and friends may have noticed more than
you think.
P18. Will I get a copy of the peace bond? (October 6, 1998)
Yes. As with a restraining order you should carry it
around with you so that it can be shown to the police if the
order is broken.
You can also inform others about the peace bond to assist
in your security, e.g., teachers, principal, security officers,
employers.
P19. His family and friends have in the past harassed me to
talk to him. Can the peace bond keep them away from me too? (October 6, 1998)
Yes, it is possible to issue a peace bond against others,
but you will have to show to the court that these others are
a threat to your safety or that of your children.
P20. How long does a peace bond last? (October
6, 1998)
A peace bond can be ordered for a maximum of twelve
months.
P21. What happens if he carries on phoning me and harassing
me at work even after a restraining order or peace bond is
granted? (October 6, 1998)
Breach of a peace bond or a restraining order is a
criminal offence for which the offender can be arrested and
charged. You should keep records of the times and nature of
the harassing behaviour and report it to the police. It is
possible that the police will only take action if it is clear
that the terms of the order or peace bond have been broken.
That is why it is extremely important to be very clear in the
order as to what the abuser is forbidden to do. Harassment is a criminal offence even if there is not a
restraining order or peace bond in existence. It occurs when
a person has a reasonable fear for her safety or for the
safety of another because of harassing behaviour. All such
conduct should be recorded and reported to the police.
P22. What happens if I agree to see him while there is a
restraining order or peace bond in effect? (October
6, 1998)
If you see him while a restraining order or peace bond is in effect he may then be able
to apply to the court for the order to be lifted because even
you are not keeping the terms.
Even if he does not apply to reopen the orders, you will
have a difficult time persuading a judge to make a further
order if it is necessary after the present order expires.
Frequetly Asked Questions on Protective Orders
P1. I want to keep my abusive partner away from me. What can I do?
P2. What is the difference between a restraining order and a peace bond?
P3. How will I decide whether to apply for a peace bond or a restraining order?
P4. How can I get a restraining order?
P5. How will I find someone to help me apply for a restraining order?
P6. How can I find a lawyer to help me?
P7. How much money do I need to get a restraining order?
P8. How long does it take to get a restraining order?
P9. What kind of order will the court make?
P10. What kind of evidence will the court need?
P11. What kinds of things can I ask my lawyer to put in the order?
P13. How long does a restraining order last?
P14. Should I do anything with my copy of the order?
P16. How can I get a peace bond?
P17. What do you have to show to the court in order to get a peace bond?
P18. Will I get a copy of the peace bond?
P20. How long does a peace bond last?
P22. What happens if I agree to see him while there is a restraining order or peace bond in effect?
P23. Even though I have a restraining order I am still afraid for myself and my kids.
P24. What happens when the court has made the order?
