There are two types of restraining orders which are available to spouses pursuant to the Family Law Act.
The first is a restraining order which prevents one spouse from contacting the other spouse pursuant to section 183 of the Family Law Act:
183 (1) An order under this section
(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative, and
(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.
(2) A court may make an order against a family member for the protection of another family member if the court determines that
(a) family violence is likely to occur, and
(b) the other family member is an at-risk family member.
(3) An order under subsection (2) may include one or more of the following:
(a) a provision restraining the family member from
(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,
(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,
(iii) following the at-risk family member,
(iv) possessing a weapon, a firearm or a specified object, or
(v) possessing a licence, registration certificate, authorization or other document relating to a weapon or firearm;
(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;
(c) directions to a police officer to
(i) remove the family member from the residence immediately or within a specified period of time,
(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or
(iii) seize from the family member anything referred to in paragraph (a) (iv) or (v);
(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;
(e) any terms or conditions the court considers necessary to
(i) protect the safety and security of the at-risk family member, or
(ii) implement the order.
(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.
(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.1
The second type of restraining order prevents one or both spouses from disposing of family property pursuant to section 91 of the Family Law Act:
91 (1) On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or unless the other spouse establishes that a claim made under this Part or Part 6 will not be defeated or adversely affected by the disposal of the property.
(2) The Supreme Court may make one or more of the following orders:
(a) for the possession, delivery, safekeeping and preservation of property;
(b) for the purpose of protecting the applicant’s interest in property from being defeated or adversely affected,
(i) prohibiting the other spouse from disposing of, transferring, converting, or exchanging into another form, property in which the applicant may have an interest, or
(ii) vesting all or a portion of property in, or in trust for, the applicant.
(3) The Supreme Court may make an order under this section before notice of the application is served on the other spouse, or may order that notice of the application be served on the other spouse.
(4) Despite section 215 (2) [changing, suspending or terminating orders generally], the Supreme Court may change, suspend or terminate an order made under this section.1
Each of these orders can be obtained by an application to the court. The application can be made without first having to attend a Judicial Case Conference and can be made without giving the other spouse notice. Because they are granted without notice the orders often contain a provision that the other party can apply to have the order set aside on giving only three to five business days notice.
The first kind of restraining order is obtained when one spouse believes that they are in danger of being harmed by the other spouse. The court will only grant this order if an act of family violence has occurred or if there has been a threat of family violence.
The second kind of restraining order is obtained when one spouse has reason to believe that the other spouse may dispose of family property before it can be divided between the spouses. This type of restraining order is often made mutually meaning that both spouses are restrained from disposing of property pending a resolution of the matter.
1Family Law Act, [SBC 2011] CHAPTER 25