restraining order

Restraining Order During and After Divorce

Restraining Order During and After Divorce

Embarking on the divorce process in Canada begins with understanding the legal requisites. You need to satisfy residency conditions, navigate grounds for divorce, and file a divorce application in your province or territory. This article provides a straightforward guide to what you can expect, ensuring you’re informed at every stage without delving into overwhelming detail.


Key Takeaways

  • A restraining order is a legal protection issued by a court to prevent abuse or harassment and can significantly affect the course of divorce proceedings, including custody and property division.
  • Obtaining a restraining order follows a procedure that involves filing an application, attending a court date, and serving the respondent; violating its terms can lead to arrest and criminal charges for the abuser.
  • Post-divorce, individuals can request to modify or terminate a restraining order, which may impact associated support orders, but safety and legal considerations should be thoroughly evaluated before making changes.


Overview of a Restraining Order

A restraining order, issued by a family court judge, serves as a protective barrier between you and potential harm. It is a legal directive designed to shield victims of domestic abuse or harassment by mandating the abuser to refrain from contact or disturbing the victim’s peace. Violating the terms of a restraining order can result in severe consequences, including arrest and criminal charges.

Different types of restraining orders cater to varying situations. Some common types of restraining orders include:

  • Temporary restraining orders: These are issued swiftly and without the presence of the alleged abuser, providing immediate protection until a formal hearing can take place.
  • Permanent restraining orders: These result from a formal hearing where both parties are heard, and evidence of abuse or violence must be presented for the order to be issued.
  • Automatic Temporary Restraining Orders (ATROs): These come into play in the context of divorce proceedings, preventing either spouse from altering financial status, like hiding assets or modifying insurance beneficiaries, without implying prior abuse.

Obtaining a restraining order involves a series of steps, including:

  1. Assessing the situation
  2. Understanding the types of orders available
  3. Consulting an attorney
  4. Filing a divorce petition
  5. Serving the order on the alleged abuser if approved

It’s important to understand this process as it plays a critical role in the overall divorce proceedings, including the handling of divorce papers.


The Role of Restraining Orders in Divorce

In the arena of divorce, restraining orders play a significant part. They can be used to ensure the safety and well-being of spouses and children involved. For instance, a restraining order may:

  • Require the alleged abuser to vacate a shared family home to safeguard the victim
  • Prohibit any contact or communication between the parties involved
  • Establish temporary custody arrangements for children
  • Provide for financial support for the victim

Restraining orders are an important tool in protecting individuals and families in difficult situations, often resulting from the court’s decisions.

While temporary restraining orders offer immediate protection, a more permanent restraining order can be established after a court hearing where both parties have the opportunity to present their case. This can have a profound impact on the outcome of the divorce proceedings, influencing aspects such as child custody, spousal support, and property division.

Automatic Temporary Restraining Orders (ATROs) are often implemented automatically when divorce proceedings begin, aiming to maintain the status quo regarding assets, marital property, and child residence. This can be of vital importance in ensuring financial stability during the divorce process.


Obtaining a Restraining Order During Divorce

Obtaining a restraining order during divorce proceedings can sometimes be a complicated legal process, but knowing the steps to take can make it easier. In Alberta, individuals can apply for a restraining order against someone who has caused fear for their safety due to actions such as:

  • personal injury
  • property damage
  • intimidation
  • harassment

The first step in this process is to fill out an Application for a Restraining Order Without Notice, which varies depending on whether the situation is related to family law or not. Once the application is completed, it must be declared before a Commissioner for Oaths at the Court of King’s Bench. After this, the application must be filed at the Court of King’s Bench, and the applicant must attend the court date provided, bringing a copy of the application.

An essential part of this process is serving the court materials to the respondent, which must be done by another individual, such as a friend, family member, or Process Server. An Affidavit of Service is required to validate this, which must be sworn before a Commissioner for Oaths and then filed at the clerk’s office. If the restraining order is granted, the applicant needs to deliver a copy to the local police with a filed copy of the Affidavit of Service and a Statement of Description.


Protections Offered by a Restraining Order

When a restraining order is issued, it offers several protections to the individual it is intended to safeguard. A domestic violence protection order, for instance, can:

  • Prevent an individual from committing acts of domestic violence against a protected person
  • Enforce distance from the protected person’s residence, work, or school
  • Restrict contact with the protected person or their household.

In cases of domestic violence, a restraining order can require the restrained person to surrender firearms and prevent them from harassment, surveillance, and physical contact with the protected person. These provisions are designed to ensure the safety and well-being of the protected individual and their children.

Moreover, a restraining order can provide protection for personal property, maintain peace, and prevent actions like destroying belongings or engaging in unwanted behavior in the context of a family law case. This can be particularly beneficial during divorce proceedings where emotions can run high and disputes over property can become contentious.


Adhering to a Restraining Order

Once a restraining order is in place, it is of utmost importance for the restrained person to adhere strictly to its terms. Violating a restraining order can lead to arrest and criminal charges against the violator. The order can specify that the restrained person must not:

  • come within a certain distance of the protected individual or their children
  • come near their home or workplace
  • communicate with the protected party or their children, except through a third party.

While the restraining order provides legal protection, it is crucial that the protected individual remains vigilant and has a safety plan. Adhering to the terms of a restraining order can provide emotional and psychological safety for the protected individual, recognizing the abuse they have endured and helping them feel in control of their own security.

On the other hand, for the accused, a restraining order can serve to shield them from unfounded allegations in volatile domestic situations by setting clear boundaries and legal consequences for violations. This reinforces the importance of adhering to the terms of a restraining order for all parties involved.


Post-Divorce Considerations

After a divorce is finalized, there may be a need or desire to modify or terminate a restraining order. Individuals protected by or restrained by a restraining order can file a request with the court to modify or terminate it before the order’s expiration date. However, before a protected person requests to terminate a restraining order, they should consider the implications, such as losing protection and the ability to have the restrained person arrested for violation.

Orders that can be modified or terminated include those preventing violence or threats, the list of protected persons, and any child or spousal support orders attached to the restraining order. It’s important to note that termination of a restraining order does not automatically affect child custody, visitation, or support orders unless specifically modified or terminated by the court.

The process to modify or terminate a restraining order post-divorce includes submitting specific forms to the court, such as Form 15C for a consent change or Form 15 for initiating a change without consent, and providing a copy of the existing court order they wish to amend. In cases where a restraining order needs to be changed and the parties disagree, the individual proposing the change must serve the other party with a Motion to Change and related documents. Safety considerations should be taken into account when contacting the party subject to a restraining order about possible modifications, especially in cases where there has been a history of violence.


Alternatives to Restraining Orders

While restraining orders can be a valuable tool in ensuring safety and protection during a divorce, they are not the only option. Alternatives to restraining orders can include:

  • Engaging in direct discussions to settle disagreements amicably
  • Hiring attorneys to assist in considering different perspectives and solutions
  • Opting for mediation or collaborative divorce

Mediation is a divorce resolution process where a neutral third party helps both spouses negotiate without making legally binding decisions. It can be more cost-effective and efficient than collaborative divorce, as it may not require the active involvement of attorneys or other professionals.

On the other hand, a joint divorce involves both spouses working with their own divorce lawyer and other professionals to reach a mutually agreeable divorce settlement without litigation, following the divorce laws. However, if the negotiation process fails for one spouse, the attorneys must withdraw, and new legal representation must be sought, potentially adding to the cost and delay in obtaining a divorce judgment. In such cases, some couples may consider a legal separation, a no fault divorce, or an uncontested divorce as an alternative.

It’s important to note that mediation is not suitable for all divorcing couples, especially those who cannot work together or have complex issues such as domestic violence or substance abuse allegations.



Restraining orders in the context of divorce are crucial for maintaining safety, reducing emotional and physical abuse, and preventing serious harm or even death. They can have significant effects on the proceedings of a divorce, including the eventual divorce decree, influencing how communication and negotiations are conducted between the parties involved.

It’s essential to understand the different types of restraining orders, such as temporary and permanent ones, to ensure protection during and after a divorce. Moreover, seeking legal counsel is vital for individuals considering a restraining order, as attorneys can guide them through the complexities of the legal process. Familiarity with the provisions and limitations of automatic temporary restraining orders (ATROs) can help maintain financial and asset stability during divorce proceedings.



In summary, restraining orders play a pivotal role in providing security and peace of mind during and after a divorce. They can protect individuals and their children from harm, maintain financial stability, and influence the outcomes of divorce proceedings. It’s crucial to understand the process of obtaining a restraining order, the protections it offers, and the importance of adhering to its terms. Also, being aware of post-divorce considerations regarding modifying or terminating a restraining order, as well as exploring alternatives to restraining orders, can empower individuals to navigate the challenging landscape of divorce with confidence and control.


Frequently Asked Questions

What is a wife entitled to in a divorce in Canada?

In a divorce in Canada, a wife is entitled to a fair share of marital property, potential spousal support, and involvement in child custody arrangements. These entitlements are determined through legal negotiations and financial adjustments, and can involve emotional challenges.


How long does it take to get a divorce in Canada?

A simple divorce in Canada can take 4 to 6 months, but contested and complex divorces with courtroom litigation may take longer.


What is a restraining order in the context of a divorce?

A restraining order in the context of a divorce is a legal measure issued by a family court to protect individuals from harm or harassment, prohibiting contact or proximity as needed.


How can I obtain a restraining order during a divorce?

To obtain a restraining order during a divorce, you will need to fill out an application, have it declared before a Commissioner for Oaths at the Court of King’s Bench, file the application at the court, and attend the court date provided. If the restraining order is granted, it must be served on the alleged abuser.


What protections are offered by a restraining order?

A restraining order offers protections by preventing an individual from committing acts of domestic violence, enforcing distance from the protected person’s residence, work, or school, and restricting contact with the protected person or their household.

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