Restraining orders: danger, danger: exercise extreme caution!  The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 defines and limits the use of personal restraining orders in B.C. family law cases. This is a useful decision in that it provides a deterrent against the improper application of section 37 of the FRA by litigants who are apprehensive or uneasy about their former spouse’s communications or contact.  Restraining orders have their use and are needed when the parties require a “cooling off” period with any direct or indirect contact between them as tempers run over the boiling point.

Section 37 of the FRA contains its own legal threshold test.  The court has to be satisfied on a balance of probabilities that there is reason to conclude on the facts that one party is unduly “molesting, annoying, harassing, . . .” the other party.  Per this legal test, the impugned conduct is demonstrated (in affidavit evidence) to be extreme and beyond the norm for newly-separated spouses with infant children. The section is worded as follows:

On application, a court may  (a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the applicant or a child in the lawful custody of the applicant or both the applicant and a child, and (b) require a person named in an order under paragraph (a) (i)  to enter into a recognizance, with or without sureties, or to post a bond, and (ii)  to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.

My concern about (misuse of) restraining orders in some cases is that such orders give extra leverage to one party when that leverage is not always justified on the facts. It is a “big stick” in the wrong hands, subject to abuse of the privilege extended to the non-restrained party.  Restraining orders can cause a case with good settlement prospects to reverse into a high conflict case in, for example, cases in which the restraining order is not required but is obtained on either false grounds or very low threshold facts. The point at which the restraining order is made can be the point of no return: the restrained party (assuming restrained without real justification) feels huge insult and betrayal, resulting in further reducing levels of trust between spouses. 

Restraining orders can tip the child custodial balance in favour of the spouse who has the children if that spouse also has a “no contact” order under section 37 FRA: that spouse can rely on the “no contact” order to deny access with near impunity when there is no court order specifying the children’s access schedule with the other parent who cannot make contact to arrange access. The situation gives the non-restrained parent much leeway and leverage that is not the intended result of section 37 FRA.

Such orders arise from section 37 of the B.C. Family Relations Act (“FRA”) and are similar to a “peace bond” order under the Canadian Criminal Code Section 810: see Regina v. P.A.O. 2002 BCPC 0560 for comments on this point by the Court in an interesting case that contrasts the “peace bond” type order with a section 37 FRA restraining order.  The legal test is much the same and the legal effect is also similar except that one starts in criminal court and this is an important difference: criminal proceedings can result in criminal charges that last a lifetime as a stigma and impediment to employment prospects and even border crossings.  Civil restraining orders don’t have a life-long impact but can be an impediment to border crossings because these orders are registered and show up on the Canadian police information database (aka “CPIC”) and show up at USA-Canada border crossings.  This can result in impeding employment prospects and immense anger and embarrassment as a vacation is ruined. Neither results are intended by section 37 FRA but these do occur because these restraining orders are registered and are required to be registered on the assumption that there are valid and substantial reasons to protect one party.

The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 says it all in its decision as follows (this quote is a good explanation of the legal grounds and test):

[33] A restraining order under s. 37 of the FRA is a discretionary order, but there must be compelling reasons to invoke the court’s discretion. The most obvious compelling reasons exist in circumstances involving conduct that gives rise to a realistic risk of physical harm to a spouse or a child, but compelling reasons also exist when other forms of harassment, molesting or annoying conduct unreasonably impinge on the emotional or mental well being of a spouse or child, or simply represent an unacceptable interference with the normal daily life of the applicant in the opinion of the court, applying societal standards of decency. There is naturally a stigma associated with a court having deemed it necessary to restrain a person’s behaviour towards another by an order, so the court must, at the lower end of the spectrum, guard against overuse of the discretion, while at the same time enforce the appropriate standards of decency.

[34] The court is of course concerned with subjectively-held fears and apprehensions on the part of an applicant, and the particular emotional vulnerability of individual parties is a material and relevant factor. However, the court is not bound to accept and agree with the subjective perceptions of an applicant, any more than it is bound to accept those of a respondent. Where threats have been subjectively exaggerated, the court may find an absence of compelling reasons to grant a unilateral restraining order. (See: L.T. v. M.T. 2006 BCSC 965, for a recent example of that approach.)                                  

[35] Where the court is unable to tell where the truth lies, it will decline to exercise its discretion to grant a restraining order. (See: B(J.R.) v. B(D.J.) 2005 BCSC 10 for a recent example of that approach.) [END QUOTE]

My comment: This decision sets out a threshold test that is supplemental and interpretive of section 37 FRA that will be of much use to us in our task of family law.