Restraining & Non-Depletion Orders (Freezing Assets)
There are two general classes of restraining orders allowed for under the Family Law Act (the provincial legislation governing the breakdown of a spousal partnership):
- orders that restrain a spouse from depleting his or her property1; and
- non-molestation orders or orders restraining harassment.2
The object of non-depletion orders respecting a spouse’s property is to ensure that the other spouse’s entitlement to the property itself or to an equalization payment that would be satisfied by sale of the property (see Marriage and the Division of Assets/Property) is protected. When a spouse applies to the court to have the couple’s net family properties equalized, the spouse may simultaneously seek a non-depletion order. The non-depletion order prohibits the spouse from “frittering away” the asset.
Alongside restraining orders, a court also has the authority to make a preservation order meaning that the court can require a spouse to deliver up for safekeeping his or her property to which the order applies.
As a restraining order is a considerable intrusion on a spouse’s right to deal with his or her property, a spouse requesting such an order is required to bring evidence respecting the likelihood that the property will be dissipated and that he or she is entitled to an equalization payment which value is put in jeopardy by the depletion of the property.
As its name implies, a non-molestation order prevents a spouse, or former spouse, from “molesting, annoying or harassing” the person applying to the court for the order. The order may also be granted in respect of the applicant’s children and can include a ban on communications with the applicant and children. A court may require that a spouse enter into a recognizance, essentially a conditional release, which it considers appropriate.
Contravention of an order restraining harassment is a provincial offence. A violator faces a $5,000 penalty or 3 month jail time for a first offence that escalates to a $10,000 fine or two years jail time for subsequent offences. Additionally if a police officer suspects on reasonable and probable grounds that a person has contravened a restraining order, the police officer is authorized to arrest the person without warrant. The Domestic Violence Protection Act authorizes additional restraining orders; it is however not yet in force.
1. See Family Law Act, R.S.O. 1990, c.F.3 as am , s.12. The orders granted under ss.12 (1) are commonly referred to as both restraining orders and non-depletion orders.
2. See Family Law Act, s.46