We know, from the work of Ontario’s Domestic Violence Death Review Committee, that a woman is at the highest risk of being killed by her abusive partner at the time she leaves the relationship. Other forms of abuse continue and even increase in intensity and frequency post-separation, too: coercive control, threats, stalking and tech abuse.
As more than one client of mine has said: “I don’t know why I left him. He’s more dangerous now than he was when we were together.”
Small wonder, then, that many women turn to protection orders in an attempt to keep themselves and, often, their children safe – or at least safer. The term covers a wide array of orders from both criminal and family court that set restrictions on the contact that one person can have with another. While they can be used in many different situations, my focus is on their use in the context of intimate partner violence. Protection orders fall under provincial/territorial jurisdiction and vary from one part of the country to another. Here, I am writing about the situation in Ontario.
Criminal court
If the abuser has been charged criminally, the court can place bail conditions that limit or prohibit his contact with his partner. This could include requiring him to stay a certain distance away from her home, workplace and other locations she frequents, restricting written contact to communication directly related to the children, requiring all communication to go through their lawyers, taking away his firearms and so on. Bail conditions are set by a criminal court justice of the peace or judge, usually at the first appearance of the accused, if he is to be released from custody. They can be varied on the initiative of either person. Where the woman seeks to have conditions dropped or loosened, the court should (but doesn’t always) ensure she is not doing so because of pressure being applied by the accused. Bail conditions end once the criminal matter is concluded.
Still on the criminal court side of things, if the accused is found guilty, he may be placed on probation for a period of time, and those terms may impose similar restrictions to those in the bail conditions.
If criminal charges are not laid, the survivor can seek a peace bond, which could contain similar restrictions on the abuser’s behaviour as bail and probation orders do. A peace bond lasts for one year, at which time it disappears with no criminal consequences for the abuser as long as he has not violated it. If the survivor continues to have concerns for her safety, she can seek to have the peace bond continued for another 12 months.
Family court
Many women turn to the family court for orders to help keep them and their children safe. That’s not a surprise, since fewer than 40% of women report IPV to the police. A restraining order imposed by a family court judge does many of the same things as bail and probation orders. It can require the abuser to turn over his firearms; to stay a certain distance away from the woman and, in some cases, the children, and to have no contact with her other than through their family law lawyers. It can also prohibit his friends or family members from contacting her.
To be eligible for a restraining order, the people have to have been married, lived in a common-law relationship for any length or time or had a child together. The person seeking the order has to persuade the family court on a balance of probabilities that she has reasonable grounds to fear for her safety or that of her children. The order can run for a specified period of time or, less commonly, indefinitely.
While a restraining order comes from the family court, if the abuser breaches it in any way, the police can lay a criminal charge against him. The Crown would prosecute and, for the accused to be found guilty, the evidence would have to prove beyond a reasonable doubt that he violated the terms of the order.
An order for exclusive possession of the matrimonial home is another way the family court can protect a survivor of IPV and her children. Usually, this kind of order is only available to someone who is married to their partner. It allows the survivor, and usually the children, to remain in the home where the family had been living and prohibits the partner from coming on the premises. The home can be owned or rented, and – if the people are married – it doesn’t matter whose name is on the deed or lease.
The court will consider what is in the best interests of the children, whether there has been family violence, both adults’ financial situations and whether either of them has alternative accommodation options, among other factors. If an exclusive possession order is made, it will generally be for a short period of time to keep the survivor safe while longer term arrangements are worked out.
But do they work?
Survivors and advocates have long argued that protection orders don’t work particularly well; that they are, in many cases, little more than pieces of paper that do nothing to stop a determined abuser, who is so focused on his need for control over his former partner that he has no concerns for the consequences of breaching an order.
Until recently, little research had been done about the effectiveness of protection orders in Ontario. However, that has changed, thanks to a research project being undertaken by the Law Commission of Ontario. Next week, I’ll report on the early findings of this important work.