Article Summary
Restraining orders are powerful legal tools designed to protect individuals by prohibiting another person from making contact with them. However, these orders are not granted routinely—they require meeting specific legal criteria. This article examines the test Alberta courts use to evaluate restraining order applications, the circumstances that justify their issuance, and what happens when these orders are challenged on appeal.
Tags:
Family
Featured case: Schaerer v Schaerer, 2021 ABCA 104 and TS v TMW, 2022 ABCA 399
Restraining Orders as Extraordinary Remedies
A restraining order is a court-issued directive that prohibits someone from having contact with another person. Violating such an order can result in both civil and criminal penalties. Despite their protective value, restraining orders—especially interim restraining orders issued before a full hearing—are considered extraordinary remedies that courts do not grant casually or "out of an abundance of caution."
The Four-Part Test for Restraining Orders
In the pivotal case of Schaerer v Schaerer, 2021 ABCA 104, the Alberta Court of Appeal established a clear four-principle framework for evaluating restraining order applications:
Burden of Proof: The individual applying for the restraining order bears the burden of proving that the order is warranted (paragraph 19).
Extraordinary Nature: A restraining order is not a routine remedy and should not be granted merely as a precautionary measure (paragraphs 20-21).
Balancing Protection and Liberty: Courts must carefully balance protecting vulnerable individuals while not unreasonably restricting the other party's freedom. The risk must be objectively reasonable, not merely subjective (paragraph 19).
Thorough Consideration: The court must take sufficient time to consider the issues and evaluate the evidence presented by all parties (paragraph 18).
This framework helps ensure that restraining orders are issued only when truly necessary and supported by evidence, not based on speculation or without proper judicial consideration.
Case Study: TS v TMW (2022)
The application of these principles can be seen in the recent case of TS v TMW, 2022 ABCA 399, where the Alberta Court of Appeal successfully overturned an improperly granted interim restraining order.
The Court of Appeal's Analysis
The Alberta Court of Appeal found that the Chambers Judge had granted the interim restraining order without adequately applying the legal test from Schaerer to the facts of the case. Two critical issues were identified:
The respondent had erroneously believed that the no-contact order had been lifted when, in fact, it remained in effect. This fundamentally undermined the argument that a restraining order was necessary, as the respondent already had legal protection through the existing no-contact order.
Given the active no-contact order, there was no "objectively reasonable risk" that required addressing through an interim restraining order—a key criterion under the third principle from Schaerer.
The Court of Appeal determined that the test for interlocutory injunctive relief outlined in RJR MacDonald v Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC) had not been satisfied. More pointedly, the Court held that the Chambers Judge had violated the second principle from Schaerer by "restrain[ing] the liberty of the appellant out of an abundance of caution" (paragraph 5).
Lessons for Restraining Order Applications
This case highlights several important considerations for both those seeking restraining orders and those defending against them:
Existing Protection Matters: Courts will consider whether other protective measures are already in place before granting additional orders.
Accuracy is Essential: Misrepresentations or errors in applications, even if unintentional, can be fatal to restraining order requests.
Objective Evidence Required: Subjective fears alone, without objective evidence of risk, are insufficient to justify restraining orders.
Liberty Interests Protected: Courts take seriously their responsibility to balance protection against unwarranted restrictions on individual liberty.
Appealing an Interim Restraining Order
If you believe an interim restraining order has been improperly issued, you may have grounds for appeal. Successful appeals typically demonstrate that:
The court failed to apply the proper legal test
There was a misapprehension of material facts
The order was not justified by the evidence presented
Procedural errors occurred in the application process
The appeal should be filed promptly, as deadlines are strict. In the TMW case, the notice of appeal was filed within 23 days of the order being granted.
Navigating Restraining Order Matters
Whether you are seeking protection through a restraining order or believe you're subject to an unjustified order, understanding the legal criteria and process is essential. The courts have established clear guidelines to ensure these powerful protective measures are used appropriately while respecting the rights of all parties involved.
If you are currently subject to a no-contact or restraining order that you believe was improperly issued, or if you need to seek protection through such an order, The Calgary Legal Team can review your situation and discuss available options. Our experienced lawyers can help you navigate these complex legal matters, whether you're filing for protection or appealing an order you believe was granted in error.
