A Restraining Order is an order issued by the court that orders someone not to have any contact with another person. There can be civil and criminal penalties if an order is disobeyed. For a Restraining Order or Interim Restraining order to be issued, the court will consider whether specific criteria have been met. It is possible to appeal an Interim Restraining Order if one has been issued and does not meet the test for being issued appropriately.
The Alberta Court of Appeal in Schaerer v Schaerer, 2021 ABCA 104, set out the test or considerations for a restraining order. There are four principles to be considered:
- The individual applying for the restraining order has the burden of proof to show that it is warranted: at para 19.
- A restraining order is an extraordinary remedy that is not meant to be granted routinely or “out of an abundance of caution”: at paras 20, 21.
- There must be a careful balance between protecting the vulnerable while at the same time not unreasonably interfering with the liberty or freedom of the other party. There must be an objectively reasonable risk for one to be issued. At para 19.
- The court must take sufficient time to consider the issues and supporting evidence of the parties to the application: at para 18.
An example of a successful appeal of an interim restraining order can be found in TS v TMW, 2022 ABCA 399. In this case, the appellant (“TMW”) argued that an interim restraining order had been improperly granted. TMW and TS had been in a short-lived sexual relationship with the respondent (“TS”) from September 2021 to January 2022. After the end of the relationship, they met up on one more occasion in February of 2022 and engaged in consensual BDSM activities in the vehicle of TS. They had engaged in similar activities during the course of their dating. TS approached TMW about resuming a relationship of some sort, and TS declined. On March 1, 2022, TMW was arrested and charged with sexual assault regarding their February encounter. At this point, TMW provided an undertaking to have no contact with TS. The no-contact order had no expiry date. On May 31, 2022, TS filed an application and affidavit documents to obtain a restraining order against TMW. In her application, she incorrectly claimed that the no-contact order had been lifted and that a restraining order would make her feel safer. An interim restraining order against TMW was granted on July 6, 2022, and TMW filed a notice to appeal the order on July 29, 2002.
Here the Alberta Court of Appeal ruled that the Chambers Judge had granted an interim restraining order without adequately considering the legal test or applying it to the facts of the case. The interim restraining order, in this case, had also been sought under the respondent’s belief that a no-contact order had been lifted, when in fact, it had not. This runs counter to the third principle from Schaerer; here, we have a lack of reasonable risk that the order would ameliorate. Issuing the interim restraining order is accomplishing what is already in play by the active no-contact order.
Considering the respondents’ error in assuming that there was no active no-contact order, then there was no objectively reasonable risk for an interim restraining order to address. Thus the test used to determine whether this is a proper instance to grant interlocutory injunctive relief has not been satisfied; RJR MacDonald v Canada (Attorney General, [1994] 1 SCR 311, 1994 CanLII 117 (SCC) at para 14. In this case, The Alberta Court of Appeal held that the chambers judge also did not satisfy the second principle from Schaefer and that they “restrained the liberty of the appellant out of an abundance of caution.” at para 5.
If you are currently under a no contact or restraining order in which you believe that courts may have made an error in issuing, The Calgary Legal Team can help. Contact us, and we can review your situation and discuss any options that may be available to you. We have experienced lawyers who may be able to help you in Filing a Restraining Order.