My name is Yoav Niv. As an experienced lawyer in Calgary, I have helped many clients resolve matters regarding Restraining Orders. Whether you are accused of threats, child abuse, or assault or are a victim, I can use my knowledge and skill to safeguard your rights and well-being.
It is important to remember that to receive the best legal advice, you need to retain a lawyer who can assess and review the facts of your case and provide you with an informed opinion.
I will answer some frequently asked questions about restraining orders in this post.
Why should I hire a lawyer to obtain or defend a restraining order?
Many people who hire me to obtain or defend a restraining order face a very stressful situation resulting from a personal conflict. These personal conflicts usually hit very close to home and have a serious emotional impact on everyone involved. They can occur at work, between family members, intimate partners, friends, and neighbours.
Some common examples of personal conflicts that lead to restraining orders include neighbour disputes, bad intimate partner break-ups, or business arrangements that fall apart. Sometimes, individuals suffering from mental health difficulties can become fixated on someone (or something), or not understand their behaviour’s impact on someone else. Things can escalate quickly when people cannot communicate and come to a mutual understanding about resolving their conflicts. This can include name-calling, unwanted contact, showing up in places uninvited, threats, destruction of property, and even violence.
Restraining orders are good because, at face value, they are supposed to prevent someone from doing something by creating legal consequences. They can typically be a “quick” fix to a problematic situation and can allow for a much-needed cooling off period in the conflict.
Many people do not realize that by trying to obtain or defend a restraining order, you have to keep dealing with the person you most want to stay away from. Without a lawyer, you will need to prepare an affidavit, serve it on the person you are trying to get away from, cross-examine the opposing party on their affidavit, and appear in court to speak to the judge yourself. Often times this means reliving past trauma.
The stress and anxiety of these situations are made worse by having to prepare for and navigate a complex justice system.
Many assume that a judge will automatically grant a restraining order by simply applying for a restraining order. This is simply not true. There are procedural rules and hurdles you must go through to get a restraining order.
As an experienced restraining order lawyer in Calgary, I have seen many people fail to obtain the results they want in court, largely because they do not understand the process and procedures. In fact, it is often my job to point out the problems with the opposing side’s affidavits, pleadings, and even the order conditions they try to obtain to get the best possible result for my clients.
Here are some common examples of where people often make as self-represented litigants in restraining orders:
- They apply for the wrong type of restraining order;
- They don’t show up to the correct courthouse, courtroom, or on time;
- Their affidavit and exhibits are not properly sworn, disorganized, or not legible;
- They do not know or understand the Alberta Rules of Court;
- Their affidavits and pleadings contain irrelevant and inadmissible information that does not meet the legal test for a restraining order; or
- They do not know how to serve the other party with their documents properly;
- They mislead the Court intentionally or by mistake by not providing the Judge with a complete version of events.
Without understanding the legal processes and requirements involved, attempting to obtain or defend a restraining order without a lawyer is an intimidating experience. If you have significant personal responsibilities and/or ongoing health concerns that limit your activities, representing yourself can be overwhelming.
What is the legal test for a restraining order?
There is a wide range of restraining orders depending on the circumstances and the relationship between the parties.
In a dating relationship where the parties have no children together and do not live together, a common law restraining order is typically the appropriate type of restraining order. Some Courts interpret the test for a common law restraining order as whether there is: a reasonably held and legitimate fear for his or her safety, the safety of any other person under his or her care or the safety of his or her property as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour. Other courts take a more generous approach and consider whether the parties genuinely do not get along and are a threat to each other, not necessarily in terms of their personal safety or property damage but also in terms of the damage that can be done to their reputations and lives.
An Emergency Protection Order may be the appropriate type of restraining order in marriage with children. Under the Protection Against Family Violence Act, the test to obtain a restraining order is whether “the claimant has been the subject of family violence.” At s. 1(1)(e) the definition of “family violence” is defined as:
- Any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member,
- any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member,
- forced confinement,
- sexual abuse, and
but is not to be construed to limit a parent or a person standing in the place of a parent from using force by way of correction toward a child who is under the care of the parent or person if the force does not exceed what is reasonable under the circumstances;
Often family law cases involving children are more complex. Careful balancing needs to be done by the Court to protect vulnerable applicants while not unreasonably interfering with the liberty and rights of the other spouse.
What are the consequences of a restraining order?
The immediate consequence of a successful restraining order application is that a person is prevented from doing something. However, if the restraining order conditions cause excessive hardship, they can have a serious personal and professional impact on the restrained party. In addition, breaching a restraining order can result in contempt proceedings, arrest, and possible criminal charges. For this reason, it is critical to seek legal advice about how to respond to a restraining order made against you and how to apply for one.
Speak to a knowledgeable restraining order lawyer in Calgary for expert legal guidance.
I am Yoav Niv, and I am well-versed in the protection and procurement of restraining orders in Calgary and all over Alberta. With extensive experience, I strive to provide clients with optimal legal advice when navigating this tricky terrain. If you have been charged with domestic assault, stalking, or any other criminal offence, I can provide the assistance you need. To schedule a free consultation to discuss your case with me, call 587-968-6721 or contact me online.