Prior to trial, there are several legal procedural mechanisms that facilitate the orderly resolution of a Family Law matter. An “injunction” is a remedy imposed by the court by which a person is ordered to stop doing something, or to actively do something.
An injunction may need to be obtained stealthily. This may be in situations where a parent may be trying to remove a child from a jurisdiction. In this type of circumstance, the other parent will not want to provide notice that an order is being sought, in case it will trigger the other parent to leave the area hastily.
Injunctions are not limited to family law, but rather is a mechanism that is used in many civil law circumstances. In the family law context, it can also be applied to division of matrimonial property and other family matters. In fact, the Family Law Rules do not specifically refer to injunctions, however, family courts are have the authority to order them pursuant to the Courts of Justice Act.
Test for Injunctions:
The test for an injunction comes from R.J.R. MacDonald Inc. v. Canada (Attorney General), which was heard in the Supreme Court of Canada. It requires the following questions be addressed by the court when considering an injunction application:
- Will there be irreparable harm?
- What is the balance of convenience between the contesting parties?
- Is there a serious issue to be tried?
The party seeking the injunction order must always be truthful and forthcoming about the facts relating to the circumstances, whether or not they are in favour or opposed to their position. Where the motion for the injunction is being brought to court without notice to the other party, the court is especially conscious of how the facts are presented, since the other party does not have the chance to make representations.
Injunctions can be applied in a variety of family law disputes. As mentioned above, an injunction may be granted in order to prevent a parent from removing a child from their habitual jurisdiction. Injunctions can also be used to prevent a separated spouse withdrawing or disposing of matrimonial assets until they can be divided and distributed by a court after a trial, or to prevent one party from destroying documents that need to be produced for the trial between the spouses.