How restraining orders impact immigration status in Canada
Sameer is an international student from Pakistan. He has pursued his Master’s degree in Canada for over a year. Drawn together by shared classes and mutual interests, he and Maya, a fellow student, started a romantic relationship. As their relationship deepened, Sameer moved in with Maya. However, intense quarrels and misunderstandings began to strain their relationship over time. After one particularly heated argument, Maya felt overwhelmed. Consequently, fearing for her emotional well-being, she obtained a restraining order against Sameer. Now, Sameer grapples with the growing gap between him and Maya. He also worries about how the order could affect his study permit and future plans in Canada after graduation.
Table of contents
What is a restraining order in Canada?
In the Canadian legal framework, a restraining order is a court order that restricts or prohibits one person from having contact with another. Family law statutes across various provinces primarily contain these orders. They often protect individuals from potential harm or harassment from a family member, typically in domestic violence, threats, or fear of disadvantage.
The specifics of restraining orders can vary across provinces and territories. Generally:
- Eligibility: Typically, to obtain a restraining order, an individual must demonstrate a genuine reason to fear for their safety or the safety of their children due to the actions, threats, or behaviour of a family member.
- Duration: The duration of restraining orders can vary. Some are temporary (often pending a full court hearing), while others might be more long-term or indefinite.
- Prohibitions: A restraining order might prohibit the subject from coming within a certain distance of the applicant, their home, workplace, or school. It can also restrict communication in any form.
- Enforcement: Violating a restraining order can have legal consequences, including fines, imprisonment, or both, depending on the province or territory.
Alternatives to a restraining order
Outside the family law context, individuals seeking protection from non-family members can often apply for peace bonds under the Criminal Code, which serves a similar protective purpose. However, other options are also available depending on the circumstances. Here is a brief list of potential alternative options to restraining orders outside family law.
- Peace Bond: A court issues a peace bond, requiring an individual to maintain peace and good behaviour, usually for up to 12 months. This bond can include conditions, such as keeping the person from specified distances from homes, businesses, or other places. People seek peace bonds when they fear harm to themselves, their family, or their property. You must apply to a criminal court and demonstrate your valid concerns to obtain a peace bond.
- Trespass Notice: For businesses or private property, you can issue a trespass notice to an individual, which warns them that they are not permitted on your property. If they return after being given notice, they can be charged under the provincial or territorial trespass act.
- Civil Restraining Order: In cases where a peace bond isn’t applicable or doesn’t provide adequate protection, individuals might seek a civil restraining order, separate from the family law context. This would be done through the civil courts and would require legal action.
- Injunction: This court order prevents individuals from doing something specific, like approaching your home or business. Obtaining a request is a more complex legal process, often used when other remedies are ineffective.
The laws governing restraining orders
As previously noted, restraining orders fall under provincial and territorial family laws. Below is a table outlining the relevant Acts on this topic.
| Province/Territory | Act Covering Restraining Orders | Relevant Sections | Penalties Section | Max Jail Time (Worst Case*) |
|---|---|---|---|---|
| Alberta | Protection Against Family Violence Act | Sections 4-10 | Section 20 | 90 days |
| British Columbia | Family Law Act | Sections 183-190 | Section 230 | 12 months |
| Manitoba | Domestic Violence and Stalking Act | Sections 10-16 | Section 19(1) | 12 months |
| New Brunswick | Family Services Act | Sections 3-9 | Section 9(5) | 6 months |
| Newfoundland & Labrador | Family Violence Protection Act | Sections 5-11 | Section 27 | 12 months |
| Northwest Territories | Protection Against Family Violence Act | Sections 5-8 | Section 21 | 90 days |
| Nova Scotia | Domestic Violence Intervention Act | Sections 5-8 | Section 18(1) | Six months |
| Nunavut | Family Abuse Intervention Act | Sections 5-10 | Section 29 | Two years |
| Ontario | Family Law Act | Sections 34-40 | Section 40 | Six months |
| Prince Edward Island | Victims of Family Violence Act | Sections 5-10 | Section 13 | Two years |
| Saskatchewan | Victims of Interpersonal Violence Act | Sections 4-10 | Section 25 | Three months |
| Yukon | Family Violence Prevention Act | Sections 5-9 | Section 25 | 24 months |
*A typical fine or prison time is likely less than these maximums. However, we tried to show the worst-case scenario to explore inadmissibility in Canada.
Understanding criminal inadmissibility in Canada
We can divide criminal inadmissibility into two significant categories: Criminality and Serious Criminality. I have published another article that explores the differences between these two. The following people are vulnerable to criminal inadmissibility.
- Permanent residents: Serious Criminality
- Foreign nationals: Both Criminality and Serious Criminality
Does a restraining order result in criminal inadmissibility?
A restraining order is a civil matter and won’t directly cause criminal inadmissibility. However, consider the following:
- The restraining order could be concurrent to a criminal offence, such as the following provisions of the Criminal Code in Canada.
- Assault (Section 265): This section defines the various forms of assault, including simple assault, assault with a weapon, and aggravated assault.
- Uttering Threats (Section 264.1): This section addresses individuals who convey threats to cause death or harm to another person.
- Criminal Harassment (Section 264): This section pertains to stalking and other persistent unwanted attention.
- Kidnapping and Forcible Confinement (Section 279) relates to kidnapping or unlawfully confining another individual against their will.
- Sexual Assault (Sections 271-273): This covers various degrees of sexual assault, from simple sexual assault to aggravated sexual assault.
- As the table in a former section of this article shows, violating a constraining order could result in criminal convictions.
- The alternatives to restraining orders could result in criminal convictions in certain circumstances.
- If the order belongs to a jurisdiction outside Canada, you must ask a Canadian lawyer to find the equivalency under Canadian laws.
Let us help!
I am not a lawyer, and this is not legal advice. However, I can provide guidance on immigration matters, including issues related to criminal inadmissibility. Please schedule a consultation for immigration advice or complete the form below.
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Al Parsai, LLM, MA, RCIC-IRB
Regulated Canadian Immigration Consultant
Adjunct Professor, Queen’s University Faculty of Law
Instructor, Ashton College, Immigration Consulting Program
Author of 88 Tips on Immigration to Canada and Inadmissibility to Canada for Human Rights Violations
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