Types of Protective Orders
Protective orders are legal recourses that a person can take to better protect themselves from potential harm. There are two types of protective orders: restraining orders and peace bonds.
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 “exparte” 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. 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 daycare. 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.
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 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. 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.
Q. I want to keep my abusive partner away from me. What can I do?
A. 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. For more information on The Victims of Domestic Violence Act, please see the area called The Victims of Domestic Violence Act under, About Abuse / Partner Abuse.
Q. What is the difference between a restraining order and a peace bond?
A. 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.
Q. How will I decide whether to apply for a peace bond or a restraining order?
A. 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.
Q. How can I get a restraining order?
A. It is possible for you to apply to civil court for the restraining order yourself. A restraining order can be attached to another action such as divorce or custody, but you can also apply for a restraining order alone. In some jurisdictions the courts have information to guide you through the process. However, you may feel that you require the assistance of a lawyer or an agency, particularly if you are also asking for custody of children.
Q. How will I find someone to help me apply for a restraining order?
A. In some areas there are agencies to assist you in obtaining a restraining order. 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. Lawyers can be found in the Yellow Pages, and the Law Society of Saskatchewan has a list of lawyers in your area practicing in the area of family law.
Q. How can I find a lawyer to help me?
A. There are several ways that you can find a lawyer. Lawyers are listed in the Yellow Pages and some may indicate if they specialize in family law. You could ask your friends if they could recommend a person or law firm. The Law Society of your province will have a list of lawyers in your area practicing in the area of family law. Legal Aid can also refer you to a lawyer practicing in family law. Remember that you need to consult a lawyer who practices in the area of family law.
Q. How much money do I need to get a restraining order?
A. 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.
Q. How long does it take to get a restraining order?
A. An application can be made very quickly. It could be made within 24 hours of you meeting with a lawyer.
Q. What kind of order will the court make?
A. 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.
Q. What kind of evidence will the court need?
A. 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.
Q. What kinds of things can I ask my lawyer to put in the order?
A. Within reason, whatever is necessary and practical to keep you and your children safe. For example, a statement that the police “shall” make an arrest if the abuser does not follow the terms of the order. If the order only says “may” make an arrest the police may not be sure if they have authority to do so. The order should mention all the places that your abuser could try to contact you and from which he is prohibited from doing so. This would include your home, your work, and anywhere you spend time consistently. You may also want to include no contact by phone. If the order is also to prevent your abuser from seeing your children the order should prohibit him from being at their school or day care. Any visitation rights with children should be specified in terms of place and time. You may also want to include a provision allowing you to deny the visit if your abuser is intoxicated at the time of the visit.
Q. His family and friends have in the past harassed me to talk to him. What can I do to prevent this?
A. 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 offense. 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.
Q. How long does a restraining order last?
A. 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.
Q. Should I do anything with my copy of the order?
A. 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.
Q. What is a peace bond?
A. 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 on 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.
Q. How can I get a peace bond?
A. 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.
Q. What do you have to show to the court in order to get a peace bond?
A. 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.
Q. Will I get a copy of the peace bond?
A. 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.
Q. His family and friends have in the past harassed me to talk to him. Can the peace bond keep them away from me too?
A. 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.
Q. How long does a peace bond last?
A. A peace bond can be ordered for a maximum of twelve months.
Q. What happens if he carries on phoning me and harassing me at work even after a restraining order or peace bond is granted?
A. Breach of a peace bond or a restraining order is a criminal offense 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 offense 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.
Q. What happens if I agree to see him while there is a restraining order or peace bond in effect?
A. 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.
Q. Even though I have a restraining order I am still afraid for myself and my kids.
A. There is no question that a peace bond or restraining order can only protect to a degree. You should still take steps to make sure that you are not vulnerable to attacks.
Some things you can do:
- Avoid empty or quiet public places.
- Carry an emergency number with you.
- Ask your police service if they have any personalized alarm systems.
- Walk in well lit areas.
- Wear comfortable shoes so that you can run if necessary.
- If you feel you are being followed go to a safe place like a store or cafe.
- Ask your transit company if a bus can stop closer to your home.
Q. What happens when the court has made the order?
A. You will get a copy of the order. If your abuser did not show up to court the hearing, your lawyer will try to serve a copy of the order on him.