“The test for the granting of a restraining order is whether the moving party has reasonable grounds to fear for their safety or that of a child in their custody. The term “reasonable grounds” makes clear that there must be some objective reason for the fear. But as Dunn J. of the Ontario Court of Justice stated in Khara v. McManus, [2007] O.J. No. 1968 (O.C.J.), at para. 38, the test has a subjective element as well:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.
Further, as Dunn J. pointed out, a restraining order is not simply a response to historical concerns. Any past harassing behavior must have a connection to present acts. As he wrote at para. 34:
If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent’s past harassment, and what an applicant perceives to be his or her present concern.
Restraining orders are not to be made on a pro forma basis. There must be evidence of the need for such an order (Palinka v. Palinka, 2003 CarswellOnt 2944 (S.C.J.)). It is not sufficient to say that no harm will arise if a restraining order is granted (Edwards v. Tronick-Wehring, 2004 ONCJ 309 (O.C.J.)). As Rogerson J. pointed out at para. 36 of Edwards, one reason that a court should be careful about ensuring that restraining orders are granted on appropriate evidence is the potential penalty for a breach. Sub-section 46(2) of the Family Law Act imposes sanctions such as a fine or even imprisonment for a breach of such a restraining order.”