Restraining Orders and Divorce Proceedings in Ontario

When a marriage is ending and one spouse is frightening or threatening the other, people often ask how a restraining order fits with the divorce. Do you have to start the divorce first? Does the order end when the divorce is granted?

This article explains how the two generally relate in Ontario, based on the province's published information. Your own facts matter, so use it as a starting point for a conversation with a lawyer.

Two different things

A divorce ends a marriage. The only ground is breakdown of the marriage, which is established where the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce. A restraining order does something different: it limits contact or access so that you can be safe.

A restraining order in family court is available if the people were married or lived together for any period, or have a child together. That means you do not need to have a divorce case already underway, and the order is not only for spouses who are divorcing.

What a restraining order can say

An order can be general, meaning stay away, or specific, such as no contact at the home, workplace or children's school. Ask for the terms that match what you actually need, because a specific order that fits your daily routine may be easier to follow and enforce than a vague one.

If the other person must be served, the order must be served on your spouse as soon as possible. You do not have to serve it yourself, because someone else can do it. Keep a copy, and call the police if it is breached.

The CPIC Restraining Order Information Form is only available at the family court counter.

Asking for it urgently

Urgent motions without notice use Form 14 and Form 14A where the other person's whereabouts are unknown, there is immediate danger of harm or removal of the children from Ontario, or notice could have serious consequences. The other person is served afterward.

Form 14 is the Notice of Motion, and Form 14A is the Affidavit, which must be sworn or affirmed. Generally a case conference comes before a temporary-order motion, but urgency, such as an immediate safety risk, is an exception. A judge who finds the conference was unnecessarily skipped may order the moving party to pay the other side's costs for the motion.

How it connects to the rest of your divorce

• Parenting: the court considers only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. Family violence and related proceedings or orders are among the factors, which can include a restraining order.
• Assessing violence: the court considers the nature, seriousness and frequency, any pattern of coercive and controlling behaviour, whether the child was exposed, and steps taken to prevent further violence.
• The family home: a married person can ask for exclusive possession, and the judge looks at past violence, other suitable housing, the children's best interests and finances.
• Temporary orders: orders about support, parenting schedules, travel or the family home can stay in place while the case continues.
• Protecting children from conflict: spouses must, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Whether a restraining order continues, ends or must be renewed once a divorce is granted depends on its terms and the court's decision. That is worth confirming with a lawyer rather than assuming.

What to do next

• If you are in immediate danger, call 911.
• Write down incidents with dates, and keep messages, photos and any police report numbers.
• Decide what terms you need: a general stay-away or specific places such as home, work or school.
• Speak with a lawyer about whether a motion without notice fits your situation.
• Ask a Family Court Support Worker, the Assaulted Women's Helpline or the Victim Support Line about help and safety planning.
• Keep a copy of any order with you and plan who can serve it for you.

Frequently asked questions