- Under Family Law Act section 46, a spouse or former spouse can apply for a restraining order if they have reasonable grounds to fear for their own safety or the safety of a child in their custody.
- Fear can be based on a genuine, objectively reasonable concern — actual physical harm doesn't need to have already occurred.
- A family court restraining order is a separate legal track from a criminal peace bond, which runs through criminal court instead — the two can, and sometimes do, run in parallel.
- Eligible respondents are limited to spouses, former spouses, and people the applicant has cohabited with.
- A breach can be enforced through police involvement, and separately, through a contempt motion in family court — though contempt is generally treated as a remedy of last resort.
- Both interim and final restraining orders are available, depending on the stage and urgency of your situation.
The Short Answer
Under section 46 of the Family Law Act, you can apply for a restraining order against a spouse or former spouse if you have reasonable grounds to fear for your own safety, or the safety of a child in your lawful custody. This runs through family court, on a separate legal track from a criminal peace bond.
The Legal Basis: Section 46
Section 46(1) of the Family Law Act allows a court to make an interim or final restraining order against a person described in the section “if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”
Who Can Apply, and Against Whom
Section 46(2) limits eligible respondents to spouses, former spouses, and people the applicant has cohabited with. This provision is specifically designed for the family relationships covered by the Family Law Act — it isn't a general-purpose restraining order tool for disputes with unrelated third parties.
The Reasonable Fear Standard
Fear can be subjective, as long as it's objectively reasonable — actual physical harm doesn't need to have already occurred. A legitimate fear of harassment, intimidation, or continued conduct that would put you or your child at risk can be enough. Emotional and psychological fear are treated as seriously as fear of physical harm under this standard.
A spouse has made repeated threatening statements and shown up unannounced at the family home since separation, without any physical altercation having occurred. This pattern of conduct can support a reasonable fear finding under section 46, even without a prior incident of actual physical violence.
Family Court Order vs. Criminal Peace Bond
These are two separate legal tracks. A family court restraining order under the FLA is a civil order, typically brought as part of a broader family law proceeding. A criminal peace bond under section 810 of the Criminal Code is pursued through criminal court, generally involving police and the Crown, requiring someone to “keep the peace.” They serve related but distinct purposes, and in some circumstances, both can be pursued and apply at the same time.
What Happens If the Order Is Breached
A breach of a family court restraining order can be reported to police, who can act on and enforce the order in appropriate circumstances. Separately, the applicant can bring a contempt motion in family court — but this generally requires proof beyond a reasonable doubt of a clear order, the respondent's actual knowledge of it, and an intentional breach, and is treated by courts as a remedy of last resort rather than a routine enforcement tool.
Interim vs. Final Orders
An interim restraining order can generally be sought urgently, providing protection while the broader family law matter proceeds. A final order is made as part of resolving the case, whether by agreement or after a hearing. If your situation is urgent, don't assume you need to wait for your entire family law matter to conclude before seeking protection.
Common Mistakes
The reasonable fear standard doesn't require past physical harm — a genuine, objectively reasonable fear can be enough.
These are different processes in different courts — understand which one (or both) fits your situation.
An interim order can often be sought urgently — don't wait for a serious incident before seeking protection.
A clear record of concerning behaviour strengthens your application significantly.
Concerned for your safety or your child's safety? Call our Toronto family lawyers at 416-274-2222 for a free, confidential consultation.
Frequently Asked Questions
You apply to family court under section 46 of the Family Law Act, showing you have reasonable grounds to fear for your own safety or the safety of a child in your lawful custody. This can be brought on an interim (urgent, temporary) basis or as part of a final order.
No. The standard is reasonable fear, not proof of past physical harm. A legitimate, objectively reasonable fear of harassment or harm — including emotional or psychological fear — can be enough, even without a prior physical incident.
A family court restraining order under the Family Law Act is a civil order pursued through family court, typically as part of a broader family law proceeding. A criminal peace bond under section 810 of the Criminal Code is a separate order pursued through criminal court, generally involving police and the Crown. They run on different tracks and can, in some circumstances, both apply.
Section 46 limits eligible respondents to spouses, former spouses, and people you have cohabited with — it's specifically designed for these relationships, not general disputes with unrelated third parties.
A breach can be reported to police, who can act on and enforce the order, including arrest in appropriate circumstances. Separately, the applicant can bring a contempt motion in family court, though this is generally treated as a remedy of last resort given its more demanding legal test.
Yes — an interim restraining order can generally be sought on an urgent basis while the broader family law matter proceeds, rather than waiting for a final resolution of the whole case.
A restraining order application is generally brought as part of a family law proceeding — if you don't already have one underway, your lawyer can help you understand how to properly bring this request before the court.
Strongly recommended, particularly given the urgency often involved and the importance of presenting your evidence of reasonable fear clearly and effectively from the outset.