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Family - Restraining Orders [FLA s.46]. Senos v. Senos
In Senos v. Senos (Ont CA, 2026) the Ontario Court of Appeal partially allowed a family law appeal, this brought against orders "which finally resolved the issues of spousal support, child support, and special/extraordinary expenses".
The court sets aside a 'restraining order' (aka 'peace bond'), here originally sought under FLA s.46, but granted under the court's common law jurisdiction [the Criminal Code s.810 jurisdiction was considered as well]:4. The trial judge erred in imposing the peace bond
[38] The respondent sought a restraining order against the appellant pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3. However, rather than granting the relief sought, the trial judge proceeded on her own initiative to invoke the court’s common law jurisdiction to prevent a breach of the peace by requiring the appellant to enter into a peace bond that would remain in effect for a period of ten years.
[39] The peace bond stated that His Majesty the King (or the “Crown”) had requested the imposition of the order. It required the appellant to keep the peace be of good behaviour generally, and especially in relation to the respondent. The appellant was prohibited from having any direct or indirect contact with the respondent and his current or past romantic partners, landlords, employers, and business associates. The peace bond then listed 18 individuals and entities with whom the appellant could not communicate directly or indirectly, including by text, email, phone, mail, or social media. The peace bond further stated that any breach without lawful excuse of the order would constitute an offence under s. 127(1) of the Criminal Code, R.S.C. 1985, c. C-46, which carries a maximum penalty of two years’ imprisonment if prosecuted by indictment.
[40] The imposition of a peace bond, whether on the basis of s. 810 of the Criminal Code or pursuant to the court’s common law jurisdiction, can have serious implications for an individual. The entering of the bond places restrictions on the Charter-protected liberty of the individual and subjects them to criminal sanctions for breach of its terms. It is therefore imperative that procedural safeguards be observed in accordance with the principles of fundamental justice guaranteed by s. 7 of the Charter, including providing sufficient notice that the court is considering making such an order, advising the individual of its possible terms, and providing the individual with a meaningful opportunity to retain counsel, adduce evidence, and make submissions: see R. v. Petre, 2013 ONSC 3048, 299 C.C.C. (3d) 246, at paras. 12-15; see generally R. v. Musoni (2009), 2009 CanLII 12118 (ON SC), 243 C.C.C. (3d) 17 (Ont. S.C.), aff’d 2009 ONCA 829, 248 C.C.C. (3d) 487, leave to appeal refused, [2009] S.C.C.A. No. 534.
[41] The procedure followed in this case fell significantly short of what was required.
[42] First, the appellant was not provided with proper notice prior to the issuance of the peace bond. The respondent did not seek this relief in his pleadings or in his submissions to the court. Although the peace bond states that it was issued on application by the Crown, in fact this was not the case because the Crown was not a party to the proceeding. The matter was not discussed during the course of the eight-day trial and was raised by the trial judge only after the parties had made their closing submissions. Then, instead of adjourning the proceedings, even briefly, in order to provide the appellant with a meaningful opportunity to consult counsel and consider whether she wished to adduce evidence and prepare submissions, the trial judge issued the order orally immediately upon the conclusion of the hearing.
[43] Even if the appellant had been afforded appropriate procedural protections, the terms of the order are extremely broad and unduly vague. For example, the categories of persons with whom the appellant is prohibited from communicating over the next ten years, such as “current or past girlfriends” or “business associates”, are not clearly defined. Nor is the scope of the prohibition on posting on social media “to or about” any of these persons. Thus the peace bond subjects the appellant to possible penal consequences for a period of ten years without her being able to know exactly what conduct could give rise to a breach of the order.
[44] I conclude that these were serious breaches of the principles of fundamental justice, requiring that the peace bond be set aside. . Woods v. Timko
In Woods v. Timko (Div Court, 2024) the Divisional Court considered (and granted) an appeal of a "final restraining order granted against the appellant father" on a motion for temporary relief:[2] The respondent mother, Julie Woods, brought a motion ex parte on an urgent basis after she was stabbed outside her home by the appellant’s father. Her motion requested a temporary without prejudice restraining order and a change of the father’s parenting time with the children while the police were investigating the matter. There were two initial appearances on this ex parte motion before Henderson and Bordin JJ.
[3] The motion was ultimately heard by Ramsay J. (‘the motion judge’) on June 7, 2023. Both parties were present and numerous affidavits were filed by the parties. The motion dealt with the issues of child and spousal support and the parenting issues.
[4] Despite the fact that there was no request for it and without giving the parties an opportunity to make submissions, the motion judge granted a final restraining order.
[5] For the reasons that follow, the court allows the appeal and sets aside the final restraining order. The interim restraining order of Henderson J. as amended by Bordin J. is reinstated.
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[29] I would allow the appeal on the basis that the motion judge erred in law by granting a final restraining order on a motion for temporary relief and which was not requested by either party.
[30] First, the purpose of a temporary order is to put things in a holding pattern until trial. It is meant “to simply provide a reasonably acceptable solution to a difficult problem until trial”: see Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at 413.
[31] The mother filed a form 14 under the Family Law Rules, which is clearly a request for a temporary order.
[32] Rule 14(1) of the Family Law Rules reads:A person who wants any of the following may make a motion:
1. A temporary order for a claim made in an application.
2. Directions on how to carry on the case.
3. A change in a temporary order. [33] In addition, r. 14(9) of the Family Law Rules indicates:A motion, whether made with or without notice,
(a) requires a notice of motion (Form 14) and an affidavit (Form 14A); and
(b) may be supported by additional evidence. [34] The mother, by filing a form 14, demonstrated an intention to request temporary relief pursuant to r. 14(9). It is of no consequence that she did not specify “temporary” with respect to a restraining order.
[35] In contrast, if the mother sought a final restraining order on a motion, she could have moved pursuant to r. 16 of the Family Law Rules requesting relief by way of a summary judgment.
[36] Rule 16(1) of the Family Law Rules reads:After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. [37] Clearly, the tragic and unforeseen events required a motion to be brought on an urgent basis. A full summary judgment hearing was not the most effective way for the mother to receive protection for herself and the children because the court would need to determine whether there was a genuine issue requiring trial, as stated in r. 16(6).
[38] Second, a motion judge should not make a final order on an interim motion: see Pagnotta v. Makowski (2008), 2008 CanLII 14800 (ON SCDC), 54 R.F.L. (6th) 173 (Ont. Div. Ct.), at para. 4, and Schick v. Cardinal, 2019 ONSC 5694, at para. 39.
[39] Not only that, courts should not make orders that neither party requested: see Titova v. Titova, 2012 ONCA 864, 29 R.F.L. (7th) 267, at paras. 46-48, and Mudry v. Danisch, 2014 ONSC 4335, 48 R.F.L. (7th) 176 (Div. Ct.), at paras. 131-132.
[40] I do not agree with the mother’s position that the court has authority under s. 46 of the Family Law Act to make a final order on a motion for temporary relief.
[41] Section 46(1) of the Family Law Act reads:On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. [42] In Titova, at para. 46, the Court of Appeal quoted from Rodaro v. Royal Bank (2002), 59 O.R. (3d) 75 (C.A.), at paras. 60-61, where the court stated that “[i]t is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings.” . Woods v. Timko
In Woods v. Timko (Div Court, 2024) the Divisional Court considered an appeal of a "final restraining order granted against the appellant father ... on a motion for temporary relief". This appeal is brought under CJA 19(1)(a.1) ["a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario"], the local Act being the Family Law Act, s.46.
Here, the court sets out the SOR for family law restraining orders:[24] The issue of whether the motion judge overstepped his authority is a question of law. The standard of review for questions of law is correctness. There is also a question as to whether the motion judge breached procedural fairness in making the decision he did. Questions of procedural fairness are also reviewed on a standard of correctness.
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