Simon's Megalomaniacal Legal Resources

Family - Restraining Orders [FLA s.46]

. 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.

....

[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.