Answer: Courts do not issue permanent restraining orders readily, but they are possible to obtain. The court must be satisfied that the woman’s fear is both reasonable and ongoing and that there is little or no reason to think that fear will end.
The success or failure of an application for a permanent restraining order rests largely with the evidence the woman presents to the court; although, of course, the judge’s understanding of violence against women, particularly post-separation violence, is also a critical factor.
The first thing to remember is that the standard of proof in family court is “on a balance of probabilities,” which is an easier test to meet than the criminal standard of “beyond a reasonable doubt.”
When a court applies the “on a balance of probabilities” standard it needs to determine whose story it finds more believable. Believability is closely tied to credibility: Which person seems more credible? Whose story seems more believable?
A woman seeking a restraining order of any kind – temporary or permanent – needs to persuade the court that her fear is subjectively reasonable. Subjective reasonableness means that the court needs to understand, based on the evidence the woman provides, why she has reason to fear her former partner; not why any person would fear him. This is a somewhat easier test to meet than one that requires her fear to be objectively reasonable, because that would mean the court would have to accept that any person would fear her former partner.
Proving her fear to be objectively reasonable would be very difficult, of course, because most often the fear that a woman experiences is based in the unique dynamic of abuse that she has experienced with her former partner both during and after the relationship.
Fear triggers are often not understandable to outsiders, who may not believe that, for example, a woman seeing her former partner’s car parked outside her house makes her afraid and not just annoyed.
However, even though the standard has a subjective element, a woman still needs to present strong evidence to meet the test of subjective reasonableness. Here are some examples of the evidence she can present to the court, in an application for a restraining order of any duration.
The history of abuse both during and after the relationship. It is very helpful to tie together the pre- and post-separation abuse, so the court can see why what he is doing now makes her fearful because of what he did before. The more detail she can provide about his abusive behaviours now, the better her case will be because restraining orders are issued to protect against present and anticipated threats, not as a response to what has happened in the past.
Her evidence needs to be detailed. For example:
Not sufficient: “My husband used to hit me”
“My husband used to hit me on the side of my head with a closed fist. This always left me with a bruise and a bad headache, but no one could see the marks because they were hidden by my hair.”
Not sufficient: “My husband used to call me names.”
“My husband liked to humiliate me by calling me slut, whore, and other obscenities especially when we were with his friends.”
Not sufficient: “My husband threatened to take the children if I left him.”
“When I told my husband I wanted to leave him, he took the children away for the weekend and sent me a text message that he was not going to bring them back. He did this every time I talked about wanting to end our marriage. The final time, he picked them up from school while I was at work, and also took their passports from the house.”
Not sufficient: “My husband has been following me since we separated.”
“My husband has followed me repeatedly since we separated. He is often parked outside my workplace when I arrive at and leave from work. He stands outside the children’s school when I drop them off and pick them up. Several times he has appeared in the grocery store when I am shopping. Two weeks ago, when I went out for dinner with my sister, he came into the restaurant just after we had ordered our meal and sat at the table next to us.”
It is especially important to include evidence that shows:
- The abuser is following through on threats he has made (for example, if he threatened to get custody of the children and then began a custody application or took the children and did not return them or if he threatened to “never let her go” and then began stalking her)
- The abuser’s threats and acts of violence and abuse are remaining constant or increasing (especially since the date of separation or since any family court proceedings have gotten underway)
- The abuser has been resistant to any other attempts the woman, others or the court may have made to stop his ongoing harassment and abuse (Has he been criminally charged or have there been interim restraining orders in the family court? Does she have proof – copies of letters or emails – in which she or family members have asked him to stop bothering her?)
This will help the court understand her need for a permanent restraining order as opposed to a short-term one.
If her former partner has been involved in any programs (anger management, PARS, etc.) she needs to tell the court why she believes this is not adequate to ensure her safety. If she knows he did not attend all the sessions, for instance, or if he told her that he could do whatever he wanted to her because now that he had “passed” the program no one would believe her, she should include this information in her evidence.
She needs to describe both the nature and extent of her fear. Does she fear he will kill her? Does she fear further physical assaults? Emotional abuse? Does the fear impact her life to the extent she has had to make unreasonable accommodations: perhaps moving, leaving a good job, putting additional security on the house, having an unlisted telephone number, changing her email address, etc.? Have any of these changes cost her money?
What is the impact of his behaviour and her fear on the children? Are they fearful as well? Is this because of direct threats or stalking of them or because of his actions towards their mother?
As noted above, permanent restraining orders are rare. There are a few reasons for this:
- Too many judges still do not understand the reality of ongoing, long-term separation violence and want to believe that once the family has completed the family court process, “hostilities” will diminish and each person will move ahead, free from the other
- If the woman’s fears are significant, the family court judge may feel the situation would be better dealt with through criminal charges
- Even a permanent restraining order does not provide a woman with a magical force field that will protect her from anything her abuser may do, and some family court judges may be reluctant to grant one for just that reason – it won’t keep her safe in any meaningful way
- A permanent restraining order is difficult to enforce, especially as the years go by and there may be some consensual contact between the woman and her abuser.
Nonetheless, permanent restraining orders are a legal option. Where you are working with a woman who wants one or who you think would be well served with one, you can support her by sharing this information and then assisting her, if at all possible, in retaining a lawyer or, at least, in obtaining summary legal advice through Duty Counsel or through the use of a 2-hour advice certificate. You can also play a very helpful role in assisting her to gather and organize her evidence of abuse.