Court File and Parties

Ontario Court of Justice

Date: 2015-02-18

Court File No.: Halton 75/12

Between:

D.C., Applicant

— AND —

M.T.C., Respondent

Before: Justice Victoria Starr

Heard on: January 7, 2015

Reasons for Judgment released on: February 18, 2015

Counsel

Logan A. Rathbone — counsel for the applicant D.C.

M.T.C. — on his own behalf by way of teleconference from Croatia

STARR J.:

INTRODUCTION

1This is the Court's decision with respect to the applicant mother's motion for summary judgment for a final order restraining the respondent father from communicating directly or indirectly with, and from being within 500 metres of, either the mother or their two children. The summary judgment motion was brought pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99. The restraining order is sought pursuant to section 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA") and section 46 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA").

2At the outset of the hearing, the father requested an adjournment of the motion. The Court dismissed the father's request for an adjournment and provided oral reasons.

POSITION OF EACH PARTY

3The mother's position is that the father was abusive (physically, verbally and psychologically) towards her and the children for much of the marriage, as well as after separation, and, as a result of his actions, she fears for both her safety as well as the children's. The father's position is that no restraining order should be granted because he has never abused either the mother or the children and the mother is making everything she says about him up.

MATERIAL BEFORE THE COURT

4The mother served her motion materials on November 28, 2014. No materials were filed in response to the motion for summary judgment by the father, despite the fact that he had informal notice of this motion by November 7, 2014, and formal notice via service of the mother's notice of motion and supporting affidavit on November 28, 2014. Consequently, at the hearing of this motion the material before the Court consisted of the following:

• Notice of Motion of the mother dated November 28, 2014;
• The affidavit of the mother sworn November 21, 2014;
• The Affidavit of Service of Logan Ambrose Rathbone, sworn November 28, 2014; and
• The mother's Brief of Authorities.

SUMMARY JUDGMENT

The Law

5Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant in this case:

When Available

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defense presented in the case.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

6Rule 16(6) is mandatory:

If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

7The case law on summary judgment was summarized by Justice Ruth Mesbur in Native Child and Family Services of Toronto v. D.C., 2010 ONSC 1038, at paragraphs 4-6:

[4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for summary judgment such as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard, 2000 CanLII 22563 (ON SC), [2000] O.J. No. 969.

[5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial. Children's Aid Society of the County of Dufferin v. J.R., 2002 CanLII 45515 (ONCJ).

[6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.

8A party answering a motion for summary judgment cannot just rest on mere allegations, blanket denials. A party must put their best foot forward, showing that there is a genuine issue for trial. Self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial will also be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.)). Consequently, one puts his or her best foot forward by providing evidence of specific facts showing that there is a genuine issue for trial.

9Because of the requirement on both parties to provide evidence of specific facts showing that there is or is not a genuine issue for trial, the Court is entitled to assume that the record contains all the evidence that the parties would present at trial (Toronto-Dominion Bank v. Hylton, 2012 ONCA 5 (CanLII), 2012 ONCA, para. 5). Courts are not to speculate as to possible evidence or elaboration and must instead rely on – and evaluate - the sufficiency of the evidence put before them on the motion for summary judgment or, put another way, disclosed to them by the affiants in their affidavits (Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224 (CanLII), [2004] O.J. No. 4084; Children's Aid Society of Hamilton v. C.R., 2006 CanLII 79342 (ON SC), [2006] O.J. No. 3442; Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842 CanLII).

10In reviewing the evidence, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial (CAS Dufferin v. J.R., 2002 CanLII 45514 (ON CJ), [2002] O.J. No. 4319). As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C., 2008 CanLII 52309 (ON SC), [2008] O.J. No. 3969 (Sup. Ct.), "No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

The Evidence

The Mother's Evidence

11The mother's evidence was the only evidence for the Court's consideration. The key portions of her evidence are set out below.

12The parties were married on October 21, 2006, and have two children, A.M.C, born […], 2007 (7 years old) and E.M.C, born […], 2010 (4 years old). The mother and the father separated on February 15, 2012.

13The mother currently resides in Milton, Ontario with the children and the father resides in Croatia. He has been living in Croatia since February 2012 when the parties separated and has not returned to Canada since then.

14The father had been physically and psychologically abusive towards both her and the children. Her evidence in this regard was detailed. These are some of the examples that she gave:

(a) The respondent was excessively controlling in that he did not like the mother to leave the residence, socialize, make phone calls, have friends or have contact with relatives. He monitored her e-mails, controlled her watching television, listening to music and using the computer;

(b) When the father drank alcohol he would become very verbally abusive towards the mother in front of the children;

(c) On one occasion, the father yelled at the mother and pushed her while she was holding their daughter who was, at the time, only nine months old. The mother fell back onto the couch, causing their daughter to cry;

(d) During the marriage, the father would, at times, harass the mother to the point of her having to run to the bedroom and lock the door to get away. He would then make her open the door and then grab her arms and push her, then yell at her for crying;

(e) When their daughter was two years old, the father threatened to kill the mother. This was overheard by their daughter and negatively affected her. Their daughter later told the mother that she was scared and that she did not want her mother to die. She then began to experience nightmares;

(f) When the father's father passed away in October of 2010, things began to get worse as the father drank more and abused the mother and the children more often;

(g) On one occasion he held their son while drunk and dropped him;

(h) In the summer of 2011, their daughter fell ill with stomach flu and began to vomit. The father screamed coarse language at the mother and accused her of trying to poison their daughter on purpose. While the mother was trying to calm their daughter down telling her everything would be okay, the father said, "Nothing is okay! You are a horrible mother! Say that again and I'll bash your head in!"

(i) The father would often call the mother "stupid" and "uneducated" in front of the children. He has also said to the children such things as: "I hope you don't turn out like your mom, having thin hair, acne, bad jaw and teeth." He has also told their son that he gets his bad temper from the mother;

(j) When the mother attempted to seek assistance from doctors and counsellors and gave their contact information to the father, the father would tell her that she was the one that needed help and that she was crazy. When she told him how she felt he would say things such as "Go talk to Oprah about it" and "If you don't like it, fuck off";

(k) In September 2011, while driving in a car, their son, 1½ years old at the time, was crying and wanted out of the car seat. The father got into a violent rage, screaming for him to "shut up" and told the mother to slap the child. He then accused their son of misbehaving because he had picked it up from his mother's side of the family. The child kept screaming "Mama! Mama!" and at the time, the father told him "Fuck your mama! You are both crazy and need to see a doctor!" Their daughter was also in the car at the time, sitting quietly. He told her that if she made a sound, he would throw her out of the car.

(l) In December 2011, while they were walking to the mall (which was his suggestion) he suddenly became angry about how cold it was. He swore at the mother, called her names in front of the children and called her an unfit mother for wanting to take the children outside in such cold weather. When the mother told him it was his idea, he told her to "shut up", said she was a "piece of shit" and said "Just wait till we get back to Croatia", where he would "fix all the damage" the mother had "done to the children";

(m) Between November 2011 and February 2012, the father threatened the mother's life several times. For example, in January of 2012, after a verbal altercation outside the mother's sister's house while the mother and father were waiting for the mother's sister to arrive, the father said, "Just wait till we get back home [to Croatia]; I will kill you when you step out of line!"

(n) In February 2012, when their son had a cough in the middle of the night, the father began swearing at the mother, loudly stating that she was the reason he was ill and that she was an unfit mother. After he continued to verbally assault the mother's character, he said "just wait till we get back to Croatia. You'll see how different things will be. No more Mr. Nice Guy. I have been patient long enough!"

(o) In the month prior to separation, the respondent would pick fights with the mother in order to put her down in front of the children. He said many things to her in front of the children, including that she should never have been a mother and that she was a piece of garbage, just like her family;

(p) In the week before separation, the father struck their daughter across the face and pulled her hair. That was the turning point and caused the mother to seek advice at the Halton Women's Place and ultimately led to her residing there temporarily in a shelter.

15The mother's evidence was also that the father's abuse of the mother and the children continued after separation. In this regard she gave only two examples:

(a) When the father learned that the mother had separated from him, he became furious. The father contacted the police who reassured him that the children were with the mother and were safe. The police would not reveal their whereabouts. He contacted the police again and asked them to lay kidnapping charges against the mother, which they declined to do;

(b) Shortly after separation the father was charged (discussed below), the mother retained counsel, and access between the father and the children was arranged. That access was to be supervised by the father's cousin, M.B., and was in the form of Skype videoconferencing. M.B. told the mother that during the visits the father would constantly display aggressive behaviour and would attempt to use the children to obtain information about the litigation. As a result of this, Skype visits supervised by M.B. stopped and instead began to take place at the Burlington Supervised Access Center where they continue to this day.

16At present, the father continues to have access with the children via Skype sessions supervised by the Burlington Supervised Access Centre. In addition to this, however, there is continuing indirect contact between the father and the children by way of cards, gifts and photographs, all of which are sent back and forth with M.B. acting as the intermediary.

17According to the mother, at some point (it is not clear from the mother's affidavit when or how it came about) the mother was interviewed by the Halton Regional Police Service and, as a result of their investigation, the father was charged with five counts of uttering death threats, all of which, she says, were either against the mother, the children or both. She deposed that those charges have not been resolved and there is an outstanding warrant for the father's arrest. It is her understanding that the warrant is a "warrant of first instance" which means that if the father comes into Canada, he will be arrested.

18Given all of the foregoing experiences of the mother and the children, the mother says she is fearful of the father and does not wish to have any contact with him, directly or indirectly. She is concerned for her own safety, as well as that of the children given that they have witnessed, and in some cases have been victims of, domestic violence at the hands of the father. The mother feels it is important for the children to continue exercising supervised Skype access with the father or supervised access if he returns to Canada. For that reason, she asks that the restraining order, if granted, contain an exception, an exception that would allow the father to continue to exercise and arrange access through and at the supervised access center.

19It is the mother's evidence that, at the present time, the only measure protecting the children or her from being contacted directly by the respondent father is the fact that he is not aware of their current address or telephone number. Until the father returns to Canada and is arrested and subjected to conditions prohibiting him from having contact with the mother and children, this lack of information on the father's part is the only thing, she says, protecting her and the children from the father.

The Police Occurrence Report

Why It Matters

20The mother attached to her affidavit a copy of a Police Occurrence Report. No submissions were made with respect to the admissibility of the report or the purpose for which admission was sought. The father made no objection whatsoever with respect to its admissibility or otherwise.

21The admission of the report is important to the mother's case for several reasons. First, the report confirms the mother's evidence that the father has 5 outstanding criminal charges, although it is more specific in that it indicates that the father has been charged with four counts of utter threats to cause death and one count of utter threat to cause damage to property. It also confirms the mother's evidence that the charges relate to threats made by the father to the mother's life.

22Second, the report contains firsthand information by the officer-writer about the actions taken or to be taken by the police. That is, it provides that the father is currently as an Special Interest Person ("SIP") and that the officer-writer will have him flagged with Canada Border Service Agency ("CBSA") in the event that he does return to Canada; and that the officer-writer will be putting out a warrant for the arrest of the father on the five charges.

23Third, the report contains information that the mother failed to properly put before the Court by either including it in her own affidavit or by submitting an affidavit sworn by M.B. With respect to the information she did not include in her own affidavit, the Court refers to the specific dates of the alleged offences for which the father has been charged. With respect to evidence that ought to have been included in an affidavit sworn by M.B., the Court refers to the portions of the report that indicate the police received information from M.B. during an interview with her and as a result of their receipt of a written statement from M.B. outlining two separate incidents where the father is alleged to have made death threats towards the mother during a conversation he had with M.B. The most important of these (for reasons that will become apparent later in these reasons) relates to an alleged threat to kill the mother made by the father 12 days after separation, on February 27, 2012. This is the recorded comment:

On Monday February 27, 2012, the accused M.C., was speaking with his aunt M.B. at her residence located at 1056 Deacon Drive in the Town of Milton. The accused had just found out he was not eligible for legal aid and was angry about it. The accused said to M.B. "if I ever see that Paki, that monkey, or that Gypsy mother fucker, I will kill them all. They're going to pay for taking my children from me and destroying my family. They'll pay and then we will see who's going to protect them, well see then." The accused was speaking about to [names unknown] CAS social workers and the victim, the mother, D.C.

Is it Admissible and, If So, For What Purpose?

24My analysis of whether the report is admissible begins with an analysis of whether it can be admitted as an exception to the hearsay rule as a business record pursuant to section 35 of the Evidence Act. That section reads as follows:

Definitions

35 (1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

"record" includes any information that is recorded or stored by means of any device.

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

Notice and production

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days' notice of the party's intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

Surrounding circumstances

(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

Previous rules as to admissibility and privileged documents not affected

(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. R.S.O. 1990, c. E.23, s. 35(5).

25In the case of Children's Aid Society of Toronto v. L.L., [2010] O.J. No. 686, 2010 ONCJ 48, 83 R.F.L. (6th) 431, 2010 CarswellOnt 920, Justice S.B. Sherr approached the admissibility of various records, including the admissibility of Police Occurrence Reports adduced pursuant to section 35 of the Evidence Act, by asking himself a series of questions which are set out at paragraph 15 of the decision:

15 With these principles in mind, I asked myself the following questions when determining the admissibility of each document:

1. Is it a proper business record under section 35 of the Evidence Act, following the criteria set out in that section?

2. Is the evidence within the business record otherwise admissible? Does it contain inadmissible opinion or second-hand hearsay?

3. Is the evidence relevant? In asking this, I addressed:

a. Does it achieve threshold reliability?

b. Does the probative value of the evidence exceed the prejudicial effect of its admission? And

4. If it is not admissible as a business record, is it admissible as evidence of past parenting?

26I adopt the same approach (except for asking the fourth question which does not apply in this case) and begin, therefore, with the first question: Is it a proper business record under section 35 of the Evidence Act, following the criteria set out in that section? As Justice Sherr did in Children's Aid Society of Toronto v. L.L., supra, I too turn to the decision of Justice P. Jones, J. in Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3), 2003 CanLII 57514, 39 R.F.L. (5th) 54, [2003] O.J. No. 1722, 2003 CarswellOnt 1685 (Ont. C.J.). In that case, she too was faced with having to answer the same question with respect to a number of Police Occurrence Reports. At paragraphs 10 and 11, she offered this guidance:

10 Although the wording of section 35 appears to include almost every type of writing made by any type of operation, whether carried on for profit or not, there are serious limitations to admissibility built into the statute. Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750, 76 D.L.R. (3d) 641, 1977 CarswellOnt 626 (Ont. H.C.), remains the leading Ontario authority on the admissibility of business records and the interpretation of section 35 of the Evidence Act. In that case, Justice Griffiths set out, in some detail, the criteria for admissibility under the section and discussed the type of recording that would qualify. The following criteria emerge:

(1) the record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record;

(2) the record must be made contemporaneously with the transaction recorded, or within a reasonable time thereafter;

(3) only records of "facts" can be admitted - note words in subsection 35(2) "an act, transaction, occurrence or event" and not records of expert opinion; and

(4) although there is no requirement that the maker of the record have personal knowledge of the facts recorded, he must be acting under a business duty and the informant must be acting under a business duty or the informant's statement must be otherwise admissible under the hearsay rule of exceptions.

11 It is important to note that in Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd., supra, Justice Griffiths did not see section 35 as opening the floodgates to permit the admission of otherwise inadmissible evidence simply because it has been recorded in a business record. For example, he excluded expert opinions that might be recorded in the record and required the party seeking its admission to comply with the evidence rules relating to the admission of expert evidence (this reasoning would apply equally to medical reports). Because of the absence of circumstantial guarantees of reliability, he also excluded recorded hearsay received from third parties who were not under a business duty to report the information. He wrote at pages 762-763 [O.R.]:

The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that the recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe section 36 [now 35] as admitting hearsay evidence of any third party would make the section an almost limitless drag-net for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy.

27The information contained in the Police Occurrence Report in this case was recorded by a police officer, a person with a duty to report. Except as otherwise stated, the information was recorded contemporaneously and the recordings were made in the usual and ordinary course of business.

28This Court was not presented with any evidence showing whether formal notice was given. I have, therefore, concluded that it was not. The lack of formal notice is not, however, fatal as noted by Arbour, J. in the case of Exhibitors Inc. v. Allen (H.C.J.) 1989 CanLII 4216 (ON SC), 70 O.R. (2d) 103, [1989] O.J. No. 1221. In that case Arbour, J. stated that although formal notice is not required in Ontario, because of the wording in section 35(3), actual notice is. From this, I conclude that I must, given that no submissions were made and no evidence specifically addressing the issue of notice was given, ask: Is there any evidence from which I can infer actual notice of the mother's intention to adduce the report as a business record was given, and if so, was it done at least seven days in advance of the hearing?

29I have concluded that actual or effective notice of the intention was given to the father and that it was given more than seven days in advance of the hearing. I have inferred this from the following: the report was attached to the affidavit of the mother and a copy was given to the father two months prior to the hearing date. It is clear on the face of the document that it is a document created by the police and, from its name, that it is a business record. It is clear both from the fact that it is attached to the mother's affidavit as an exhibit and from the fact that she references it in her affidavit, that she intended to rely upon it and have it form part of the evidentiary record. The father was given this record along with the mother's notice of motion and affidavit on November 28, 2014, some two months in advance of the hearing and, thus, the father had more than seven days' notice of the mother's intention.

30Given the foregoing, I find that the Police Occurrence Report is a proper business record under section 35 of the Evidence Act, as it meets the criteria set out in that section.

31With respect to the questions of whether the evidence within the business record is otherwise admissible and whether it contains inadmissible opinion or second-hand hearsay, the Court adopts the analysis set out in paragraph 16 of Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3), supra. In that case Justice P. Jones wrote:

...Information that was clearly from the personal knowledge of the recording officer or information that was received from another police officer who was acting under a duty to report was admitted. As well, recorded comments made by one of the parents (one of the charges related to an allegation of spousal assault and a further charge related to sexual assault) were admitted as statements against interest. Recorded comments made by complainants who were neither police officers nor one of the parents were excluded as a result of my application of the reasoning contained in ... Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd., supra.

32The following information in the Police Occurrence Report has, as its source, either the mother, a party to these proceedings, the police officer who wrote the report, or information recorded by the officer-writer based on what another officer, with the same duty to report, reported to the officer-writer:

a) The nature of the charges laid by the police; namely, four counts of utter threat to cause death to the mother, one count of utter threat to damage property;

b) The dates on which the offenses for which the father has been charged are alleged to have taken place; two of which are alleged to have occurred shortly after separation, on February 16, 2012 and February 28, 2012; and,

c) The actions taken and to be taken by the police (the father having been noted as a Special Interest Person, the intention to place him flagged with the CBSA and to issue a warrant for arrest).

33The Court finds the foregoing information to be relevant both logically and pragmatically. All of the foregoing information relates to the father's abuse of the mother, the extent of the threat he posed to the mother's physical safety, the dates on which the threats to the mother's life were made and the protections afforded to her as a result of the actions taken by the police. This information is at the heart of both the mother's position and the issues the Court must determine. It is, thus, not only relevant, but highly probative. While it is prejudicial to the father, that is only because the father chose not to file any responding material, failed to summons the officer and failed to cross-examine the mother on her affidavit. To the extent that the probative value outweighs the prejudice of admitting the information into evidence, this is of the father's own doing.

34For all these reasons the information outlined above and contained in the report is admitted for the truth of the facts alleged.

35While the Court might ordinarily be prepared to accept the information in the report that has as its source the mother (ie. the factual synopsis of the various incidents resulting in each criminal charge) in this case, the Court is not prepared to do so. The Court is not prepared to do so for three reasons:

• First, because it does not need to as much of the information is already contained in the mother's affidavit;

• Second, to the extent that it is not in the mother's affidavit, this is the mother's own fault and results from her failure to put her best foot forward on this motion;

• Third, and more importantly, the Court is not satisfied that the information in the factual synopsis for each charge has been recorded accurately and is, thus, reliable. For example, the report refers to M.B. as the father's aunt, yet at paragraph 39 of the mother's affidavit, the mother refers to M.B. as the cousin of the father. This is a small thing, but it shows that some of the information recorded may not be accurate. Given the highly prejudicial nature of that information and the fact that much of the information is already in the mother's affidavit, or could have been, I find its probative value to be minimal and outweighed by the prejudice to the father.

36The Court is also not prepared to accept any of the information contained in the report that has as its source third parties. In particular, this means that the Court is not prepared to accept the synopsis of what occurred and the threat made by the father on either February 12, 2012 or February 28, 2012 as these have as their source M.B. M.B. still lives in this jurisdiction and, in fact, was present in the body of the court at the hearing. There is absolutely no reason why the mother could not have put into evidence an affidavit from M.B. attesting to the specifics of the two threats to the mother's life that she alleges were made by the father to her life or property.

Decision and Reasons of Justice Sproat

37The mother's evidence was that the father filed an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, T.I.A.S. No. 11 670 (the "Hague Convention") in 2012. The matter proceeded to trial before Justice Sproat of the Superior Court of Justice in Milton. Justice Sprout released his decision and reasons on July 16, 2013 and a copy of that decision was annexed to the mother's affidavit.

38Justice Sprout dismissed the Hague application on the grounds that the children were habitually resident in Ontario and not Croatia. However, he also noted in his reasons that had he not so decided, that he was satisfied that there was a grave risk that the return of the children would expose them to physical or psychological harm (at the hands of the father), or otherwise place them in an intolerable situation, pursuant to Article 13(b) of the Hague Convention.

39The mother urged the Court to admit the findings of Justice Sproat as proven evidence for use on this motion on the basis of the doctrine of res judicata in the form of issue estoppel. Counsel for the mother was not clear as to which specific findings the mother wishes me to rely upon. Her counsel referred to credibility findings and to the finding that the father had abused the mother and children during the relationship and his finding that the return of the children would expose them to physical or psychological harm.

40Not surprisingly, the father did not object. Because he is self-represented and the issue complex, and in an effort to minimize any disadvantage to the father arising from the fact that he is not a lawyer and to keep the process fair, the Court did not simply accept the evidence and has instead embarked upon a full analysis as to its admissibility.

41Res judicata is grounded upon two broad principles of public policy: First, that the State has an interest that there should be an end to litigation; and, second, that no individual should be sued more than once for the same cause, B. v. J., 2001 CanLII 28217 (Ont. SCJ).

42Res judicata has two forms: Issue estoppel and cause of action estoppel. Issue estoppel occurs when the issue has already been decided in a prior proceeding. There are three preconditions to establishing issue estoppel:

(i) The issue must be the same as the one decided in the prior proceeding;

(ii) The prior decision must have been final; and

(iii) The parties to the proceedings must be the same (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460 at par. 25).

43In this motion, two prongs of the issue estoppel test are met: The parties are the same and the prior decision was a final one. The issues, however, are not identical. In the Hague case, the issue was, first, whether the children were habitually resident in Ontario and, if not, whether there existed a grave risk to the well-being of the children if they were returned to Croatia, whether they would be put into an intolerable situation if they were to return to Croatia and whether the children could be adequately protected from such risk by the authorities.

44Justice Sproat's comments with respect to the existence of such grave risk of harm, his finding that the children would be put in an intolerable situation if returned to Croatia and his finding that they could not be adequately protected from such risk by the authorities there are findings and comments made in obiter. He had already made the finding upon which the dismissal of the Hague application was primarily based – that the children were habitually resident in Ontario.

45Despite the foregoing, some of the sub-issues before Justice Sproat are identical to the issues this Court must decide; for example, whether the father psychologically and physically abused the mother and the children during the marriage and whether the father threatened the mother's life (and the life of two others) shortly after separation.

46Counsel referred me to the case of Children's Aid Society of Bruce County v. B(I), 2004 ONCJ 454. The Court has also considered the following cases: Minott v. O'Shanter Development Co. 1999 CanLII 3686 (ON C.A.), (1999), 42 O.R. (3d) 321 (Ont. C.A.); B. v. J. 2001 CanLII 28217 (Ont. SCJ), and City of Toronto v. Canadian Union of Public Employees, Local 79 (2001), 55 O.R. (3d) 541, 149 O.A.C. 213, 205 D.L.R. (4th) 280, 37 Admin. L.R. (3d) 40, 45 C.R. (5th) 354, 2001 CanLII 24114, [2001] O.J. No. 3239, 2001 CarswellOnt 2760 (Ont. C.A.). Based upon the Court's review of these cases, the Court concludes that even where the requirements for res judicata are not met, the Court may exercise its discretion and apply the principle on the grounds that it would allow abuse of process, cause unfairness or work an injustice to do otherwise.

47This type of flexible approach to the exercise of discretion to res judicata is also consistent with Rule 2 (2) of the Family Law Rules which govern the conduct of family law cases and is premised on the family court's residual stake in the manner in which litigation is conducted, founded on the Court's inherent power to control its own process and which provides that the fundamental purpose of the Rules is to deal with cases justly.

48In Children's Aid Society of Bruce County v. B(I), Justice R.S.G. MacKenzie sets out the approach the courts are to take to the exercise of discretion both when the issue estoppel test has been met and when it has not. That case, like this one, involved a motion for summary judgment. In that case, the motion had been brought by the Society and the evidence tendered by the Society for use on the motion included the reasons for judgment of Justice P. A. Hardman. Justice Hardman's reasons were ones delivered in a different case - one involving the same mother but a different father and a different child of the mother. Justice MacKenzie found that the doctrine of issue estoppel failed because the parties were not exactly identical. He went on, however, to exercise his discretion to allow the evidence because, in both cases, the presence of the father of the second child in mother's life – a man who was a party in the case before him and to the motion for summary judgment but never a party to the first case - had been at the heart of the original trial and he was "privy", if not a party, at the previous trial because of his close and continuous relationship with mother. At the previous trial he had also clearly been the subject of the vast extent of evidence called at that trial.

49At paragraphs 20 and 21, Justice MacKenzie adopts the flexible approach applied by Justice Coherty in City of Toronto v. Canadian Union of Public Employees, Local 79, supra. Quoting from that case Justice Mackenzie begins his conclusion as follows:

20. In paragraphs [99] and [100]:

[99] Those cases which have refused to apply res judicata to preclude relitigation even though the criteria for the application of the doctrine were met, and those cases which have refused to permit relitigation even though all of the res judicata doctrine were not met, reflect the same principled approach to the problem of relitigating decided issues. The ultimate question must be whether finality concerns preclude relitigation or whether the justice of the individual case demands relitigation.

[100] The following approach should be taken when weighing finality claims against an individual litigant's claim to access to justice:

Does the res judicata doctrine apply?

If the doctrine applies, can the party against whom it applies demonstrate that the justice of the individual case should trump finality concerns?

If the doctrine does not apply, can the party seeking to preclude relitigation demonstrate that finality concerns should be given paramountcy over the claim that justice requires litigation?

21 In the case before him, Justice Doherty said:

[101] ...While acknowledging that issue estoppel does not apply [because, of course, in that case, as here, the parties are not precisely the, same], it is important to recognize that save for the mutuality requirement of that doctrine, all of the other criteria for its application are met in this case. The decision in the criminal proceeding is a judicial decision and a final decision. Perhaps most importantly, the issue decided in the criminal case is exactly the issue that had to be decided in the arbitration. Thus, while the res judicata doctrine does not apply, the facts of this case put it at the very edge of that doctrine.

[102] Even though issue estoppel does not apply, the Court is convinced that, in these circumstances, finality concerns must be given paramountcy over CUPE's claim to an entitlement to relitigate Oliver's culpability.

50I turn now to the application of this principled approach to the request in this case that the Court admit the reasons for judgment of Justice Sproat as evidence for use on this motion for summary judgment.

51The res judicata doctrine of issue estoppel does not apply. While the parties to this motion are identical to those on the Hague application and while the Hague decision was final, the issues, as the Court has already noted, are not exactly identical. However, even though issue estoppel does not apply, the Court finds that allowing the father to re-litigate the issue of whether he abused the mother and children both during the marriage and once or twice afterwards, as well as the issue of whether he posed a risk to their continued well-being, would amount to an abuse of process. Further, in the circumstances of this case, finality concerns must be given paramountcy. Denying the father the option to re-litigate these issues prevents an abuse of process by providing finality.

52To avoid an abuse of process, and based upon the circumstantial considerations that follow, the Court has decided to admit the reasons for judgment of Justice Sproat as evidence for use on this motion for summary judgment:

(a) The parties are the same;

(b) The children are the same;

(c) While the main issue before Justice Sproat and the main issue before me are different, at the heart of both cases is the determination of whether the father was physically and psychologically abusive towards the mother and the children;

(d) The father's answer to the allegations is the same – he denies that he was ever abusive towards the mother and the children and insists that the mother is lying (although in this motion of summary judgment those factual assertions were made in submissions as the father put no evidence before me);

(e) Both the father and the mother attended the trial before Justice Sproat. Both presented evidence from a variety of witnesses, including the mother, the father's cousin M.B., the father's mother and brother, and most importantly, the father himself. That evidence was also subject to cross-examination. The father then has had every chance to review, cross-examine and rebut the evidence of the same issue before me on the motion for summary judgment;

(f) Justice Sproat had the benefit of hearing from each of the witnesses and of hearing their evidence tested on cross-examination;

(g) Justice Sproat made findings, conclusions and rulings on evidence on the very issues before me on this motion;

(h) No one sought to have Justice Sproat's decision set aside;

(i) No one appealed Justice Sproat's findings, conclusions or ruling;

(j) Given that the father has presented no evidence for use at this motion and relies solely on a bald denial of fact he made during submissions, admitting the reasons into evidence may be the only way to put evidence before this Court of the specific facts that show that there is a genuine issue for trial.

53Having admitted the reasons for judgment of Justice Sproat into evidence, the following excerpts from the decision are relevant evidence for this motion:

[42] M.B. testified that after the separation M.C. made a threat to kill D.C. and that, on a different day, M.C. repeated the threat to kill D.C., as well as Ms. Greenwald of Halton Children's Aid Society (although she was not referred to by name).

[43] M.C. denied any and all allegations of abuse or threats. His mother and brother testified they saw no evidence of abuse or threats in Croatia.

[52] I am satisfied that there is such a grave risk and that the children would be put into an intolerable situation if they were to return. As previously discussed, there are a number of compelling reasons I preferred the evidence of D.C. and M.B. to the evidence of M.C. I am satisfied based, upon the evidence of D.C. and M.B. that M.C. has engaged in physical abuse of D.C. and just as significantly psychological abuse. I find is a fact that he did make the vile, bigoted and threatening comments attributed to him by D.C. and M.B. I also accept the evidence of D.C. that, particularly given the small town the family resided in while in Croatia and M.C.'s relationship with local officials, the risks that exist could not be mitigated by recourse to social service agencies.

The Father's Evidence

54In his submissions, the father denied that he has ever abused the mother and children, asserted that the mother is making everything up and he does not know why she is doing this. He submitted no evidence at all to support his position that there is a genuine issue for trial and the motion for summary judgment should be dismissed.

FINDINGS

55I make the following findings of fact based on the evidence before me:

(a) During the marriage the father was verbally, physically and psychologically abusive towards the mother, often in front of the children and at times, to the point of scaring the children;

(b) The father's abuse of the mother during the marriage included threatening to kill her, intimidating and scaring her, humiliating and belittling her, and pushing her;

(c) While the parties were still together, the father was verbally and psychologically abusive towards both children and physically abusive to their daughter on one occasion (slapping her across the face on February 12, 2012);

(d) The only evidence of "abuse" by the father following separation is as follows:

(i) In the weeks following separation, the father made two further threats to kill the mother, as well as two professionals who were supporting her;

(ii) Initially after separation, the father misused his Skype access to the children, access that was supervised by M.B., by using the children to obtain information about the litigation. As a result of this, his access to the children stopped being supervised by M.B. and instead was supervised by the Burlington Supervised Access Centre;

(e) At present and for quite some time, access between the father and the children has and continues to occur:

(i) by Skype with the sessions occurring at and being supervised by the Burlington Supervised Access Centre;

(ii) via the exchange of photographs, gifts and cards facilitated by Ms. B.

(f) The father does not know where the mother and the children reside, nor does he know the mother's telephone number;

(g) The father has been charged with four counts of uttering death threats, all of which are against the mother and one count of uttering threat to damage property;

(h) The father has not been arrested;

(i) There are no legal conditions or orders in place that prohibit the father from communicating directly or indirectly with the mother or with the children or which prevent him from having contact with any of them, should he return to Canada;

(j) If the father comes back to Canada, he will be arrested;

(k) The mother is fearful of the father and believes he poses a risk to both her own physical and psychological safety, as well as the physical and psychological safety of the parties' two children;

(l) The father's view of his actions during the marriage and shortly after separation has not changed.

56The Court finds that the evidence is sufficient and that there is no genuine issue for trial. The Court is, thus, able to determine the issue of whether a final restraining order should be granted.

RESTRAINING ORDER

Statutory Authority

57The statutory authority for the making of a restraining order emanates from section 35 of the CLRA and section 46 of the FLA.

58Section 35 of the CLRA provides:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

59Section 46 of the FLA provides:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

Case Law

60The Court reviewed a number of cases provided by counsel for the mother, as well as additional case law all of which the Court refers to below.

61One of the cases provided to me by counsel was that of S.L.I. v. A.D.G., 2011 ONCJ 689, a decision of Justice Carole Curtis which also involved a request for a restraining order made on a motion for summary judgment. This case, while helpful on the issue of summary judgment, was not helpful on the issue of a restraining order as, in that case, the father conceded at the outset that there was no genuine issue as to the restraining order and he consented to a final restraining order being granted.

62McCall v Res, 2013 ONCJ 254, is a decision of Justice R.J. Spence. In that case the mother suffered an Acquired Brain Injury ("ABI") as a result of a motor vehicle accident. One of the long-term effects was that her functioning diminished when she was anxious or distressed and she became somewhat vulnerable to the influences of those she was close to. The case is helpful because one of the issues that Justice Spence had to grapple with was whether fear for one's safety or for the safety of one's child extends beyond physical safety and includes psychological safety. After reviewing several cases (which incidentally included Azimi v. Mirzaei 2010 CarswellOnt 4464 (Ont. S.C.) (a case proffered to me by mother's counsel), Justice Spence concluded that it does. His reasoning can be seen at paragraphs 29 to 31:

29 Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]". In Fuda v. Fuda, 2011 ONSC 154 (CanLII), [2011] O.J. No. 138, 2011 CarswellOnt 146 (Ont. S.C.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:

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. 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.

30 In Azimi v. Mirzaei 2010 CarswellOnt 4464 (Ont. S.C.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

More importantly, Horkins, J. made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

31 What I take from these cases is:

The fear must be reasonable;

The fear may be entirely subjective so long as it is legitimate;

The fear may be equally for psychological safety, as well as for physical safety.

63Salehi v. Haghighi, [2011] O.J. No. 5692 is a decision of Justice S.B. Sherr on a motion for summary judgment where one of the forms of relief being asked for was a final restraining order. In this case a final restraining order was granted but it is clear from Justice Sherr's findings (found at paragraph 56) that this was because the father had, since separation, persistently stalked and intimidated the mother and the child; proven to be very resourceful in tracking the whereabouts of the mother and the child; shown no respect for and a blatant disregard of court orders to stay away from the mother and the child (among other things). The father's behaviour in that case was also found by Justice Sherr to be unpredictable and uncontrollable. Justice Sherr found him to be ungovernable by court orders. A further reason for granting the restraining order was that the father had shown absolutely no insight into his behavior and taken no responsibility for his behavior.

64Based on my review of the case law, the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one's psychological safety;

(d) 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;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant;

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words and a Court must be able to connect or associate a respondent's actions or words with an applicant's fears.

65The cases involving a significant passage of time during which there had been no or no recent incidents that would give rise to fear on the applicant's part were of the most use to the Court in deciding this case. This is because the most difficult part of this case for me was what to make of the almost three years that have gone by without a single incident akin to what happened during the marriage or in the weeks following separation reoccurring.

66The first of the cases dealing with this type of situation that the Court considered was that of Khara v. McManus, 2007 ONCJ 223 (CanLII), [2007] O.J. No. 1968. In that case, the respondent had been both physically and emotionally abusive to the applicant during the relationship and a restraining order had been granted on a temporary basis following separation. Since that restraining order had been issued, the respondent had not committed any acts of violence. Justice P. Dunn closely reviewed the respondent's conduct during the intervening period, as well as the nature of the applicant's current concerns. Justice Dunn refused to grant a final restraining order because the applicant was linking her current concerns to those of her pre-separation past as there was nothing to justify a restraining order under the current circumstances. Justice Dunn summarizes the temporal connection that is required as follows at paragraph 34:

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.

67Smith v Waghorn, 2012 CarswellONT 3048, is a decision of Justice J. Kane. As Justice Dunn did in Khara, supra, Justice Kane declined to grant the restraining order because there were no recent altercations and, thus, no current evidentiary basis to grant such an order. Her reasons are set out at paragraphs 120 and 121:

120 The parties have been separated two and one half years. The Respondent has remarried and is living hundreds of kilometres from Ottawa. There are no recent allegations of altercations between the parties. There is currently no evidentiary basis to grant such an order. Such orders should not be granted lightly. The numerous past allegations and orders on this subject will remain accessible should circumstances arise in the future.

121 The same reasons apply to the Respondent's request for a restraining order. No such order is being granted to either party.

68Stave v. Chartrand, [2004] O.J. No. 2538 was a case decided by Justice J. Pugsley. In that case the only issue was whether the respondent should continue to be bound by a restraining order. As with Smith v Waghorn, supra, and Khara, supra, Justice Pugsley was also faced with a situation where there had been no recent incidents of the kind that gave rise to the original restraining order. Justice Pugsley also dismissed the request because of the lack of a temporal connection between the past actions and the current fear. His reasoning is set out at paragraphs 20 to 27. Excerpts from those paragraphs that are most helpful in terms of offering guidance are as follows:

20 Beyond an assessment of the events described by the parties looms also the passage of time. Events that once triggered a temporary restraining order may not now be so compelling on the issue of a permanent order. The events complained of by the applicant and pointed to in support of her request for the order occurred within a relatively short time span almost one year ago. No harassing events have taken place in the last eleven months.

24 The question for me today is not whether the events outlined above were seen subjectively by the applicant as threatening. Rather, I must look at those events objectively to determine whether they form the basis for a restraining order under section 46 of the Family Law Act and, if so, whether such an order is still required today. In analysing the evidence here, I must also be aware that the applicant has many protections available to her if I do not grant the order requested. Plainly put, all citizens of Canada are protected from harassment if such harassment is illegal under the Criminal Code, R.S.C. 1985, c. C-46. Further, the applicant has the protection of the Trespass to Property Act, R.S.O. 1990, c. T-21 available to her. In other words, if the applicant has been unable to convince me to make the order requested, this does not lead to a conclusion that she lacks protection from future misdeeds by the respondent.

25 Further, in my view it is appropriate where the evidence led by the applicant is not fully compelling to consider the balancing prejudice to the respondent should the order be granted…. I find the effect upon the respondent if the order is continued to be significant.

26 Objectively assessing the events that I have set out above, I come to the conclusion that the temporary restraining order was well founded on the evidence. I have also concluded, however, that there is no continued need for a restraining order in the context of those facts. I make that finding on the basis of the fact that the events relied upon by the applicant are now events of a year ago. The passage of that year, and perhaps the cathartic effect of this trial, have served to reduce the level of conflict between the parties to the point where the applicant herself states that she believes there are no outstanding property issues between them….

27 Looking at the history of this matter objectively, I find no basis for continuing the restraining order. Plainly put, I do not believe that the respondent will molest, annoy or harass the applicant in the future and no order is necessary to prevent such harassment. The criminal law and provincial statutes such as the Trespass to Property Act, will not leave the applicant defenceless if my finding is proved to be too optimistic.

69Based on the Court's review of these cases and those referred to below, the Court should be guided by the following additional principles when deciding whether to grant a restraining order in borderline cases, that is, cases involving the passage of a significant period of time during which there have been no or no recent incidents of aggression or inappropriate behaviour:

(a) The court must have regard for the passage of time. Events that once triggered a temporary restraining order may not now be so compelling on the issue of a permanent order;

(b) When examining the link between some past act of aggression and some possible future aggression the court should look closely at the intervening period between the respondent's past harassment and what the applicant perceives to be his or her present concern;

(c) If a respondent has committed past acts or words of harassment they must have some current relationship with the applicant's present fears. There must be some link between the past aggression and possible future aggression;

(d) Some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over a period of time is required (see Purewal v. Prewal 2004 ONCJ 195 (CanLII), [2004] O.J. No.3891 (O.C.J.);

(e) It is not sufficient to argue that there would be no harm in granting the order (see Edwards v. Tronick-Wehring 2004 ONCJ 195 (CanLII), [2004] O.J. No.3891);

(f) In borderline cases the Court must consider whether a restraining order would be a resource to the applicant to protect her from the respondent;

(g) In borderline cases, the Court must consider what other protections may be available, if a restraining order is not granted; and

(h) It is appropriate where the evidence led by the applicant is not fully compelling to consider the balancing prejudice to the respondent should the order be granted.

ANALYSIS

70Both this Court and that of Justice Sproat before it in the Hague case have found that this father abused this mother and their children during the marriage and that that abuse consisted of both physical, verbal and psychological abuse and included multiple threats made by the father to kill the mother. There can be no doubt that at the time of the separation the mother was justifiably fearful for both her and the children's psychological and physical safety and that both the fear and the very real risk to their safety was directly linked to the father's longstanding abuse of her and the children during marriage and his threat and actions in the weeks following separation.

71The problem in this case is that a significant period of time has passed (almost 4 years) during which there have been no threats or acts of aggression or violence by the father towards the mother or the children. The acts complained of by the mother and pointed to in support of her request for a restraining order occurred during the marriage, while the parties were living together, and shortly after separation. The mother's fear, therefore, appears to be based upon the link she makes between the father's past aggression and possible future aggression.

72The Court adopts and applies the guiding principles outlined in the jurisprudence discussed above. Consequently the Court begins with a close examination the events and actions which have occurred during the intervening period with a view to determining whether there is a link between the father's past aggression and the mother's present concerns and fears.

73The following is noted about what has gone on during the intervening period in this case:

(a) The father has been in Croatia and has not returned to Canada since the parties' separation in February 2012;

(b) With the exception of the threat to kill the mother made shortly after separation and the father's misuse of his access with the children shortly after separation to garner from them information about the litigation, there is no evidence to suggest that there have been any harassing, abusive, or inappropriate actions on the part of the father in the last 34 months;

(c) While the mother sought a final restraining order in her application issued February 28, 2012, she has lived without one for almost three years. No temporary restraining order appears to have been sought and certainly no such order has been made to date;

(d) The father has had regular contact with the children via Skype sessions supervised by and at the Burlington Supervised Access Centre and there is no evidence before me to suggest that he has acted inappropriately or aggressively at any of these visits;

(e) The father has sent cards, gifts and photographs to the children during this period via his cousin. Again, there is no evidence to suggest that he has acted inappropriately or aggressively in this regard.

74In this case not only has there been no repeat of any of the acts of aggression of the father, but there does not appear to be a need for a restraining order. In this regard, the Court notes the following:

(a) There is no evidence to suggest that the father plans to return to Canada;

(b) If the father returns to Canada, he will be arrested on the outstanding charges of utter threats to cause death and damage to property; and

(c) It seems unlikely that the father will return to Canada given that he will face criminal prosecution and possible imprisonment should he do so.

75At first blush the Court's examination of the intervening period reveals nothing that could be relied upon to link the father's past aggression with the mother's present concerns and fears.

76In each of the cases the Court reviewed, where the Court was faced with a significant passage of time in which no events resembling the past events occurred, the judges effectively conclude that there has been a significant and positive change in either the circumstances (i.e. the end of acrimony is due to the passage of time or the end of litigation) or a change in the nature of the parties' relationship.

77However, in each of the cases the Court reviewed, there did not appear to have been anything preventing the respondents from re-engaging in abusive action. The exception to this in the cases the Court reviewed was in the case of Salehi v. Haghighi, supra, where the periods of inactivity on the part of the father were attributable to the fact that he was incarcerated and thus unable to act.

78In this case, there are several unusual circumstances that may account for the lack of inappropriate or aggressive activity on the part of the father, none of which can be used to form the basis of a conclusion that there has been a significant and positive change in either the father or the parties' relationship.

79Examples of the types of things that may be serving to restrain or prevent this particular father and, as a result, to protect the mother and children include:

• The fact that the father does not know the mother's address or telephone number;

• The criminal prosecution that the father will face if he returns to Canada; and

• The negative impact such actions would have on the father's success in relation to the issue of access which remain outstanding.

80The possibility that any one of the foregoing factors could serve to explain the lack of threatening or abusive activity on the part of the father during the last 34 months is worrisome when coupled with the evidence, and lack thereof, tending to show that the father's view and attitude towards the mother and about his behaviour has changed.

81These factors have lead me to reduce the weight the Court has put on the fact that there have been no concerning incidents over the past 34 months and, more importantly, create a tenuous temporal connection between the father's past acts of violence and abuse and the mother's current fears. These factors put this case into the category of "borderline cases" and, as such, further analysis is required to determine whether a restraining order should or should not be ordered.

82As the Court has already noted, in borderline cases such as this one where the evidence of current risk is not very compelling, the Court must next consider what other protections may be available to protect the mother and children if a restraining order is not granted, as well as consider the balancing prejudice to the respondent should the order be granted. It is to these two factors that the Court now turns.

83I have no evidence before me that could assist me in balancing the prejudice to the father of granting a restraining order. As such, the Court makes no finding one way or the other with respect to prejudice to the father of granting one.

84There are no legal prohibitions or conditions in place that carry with them the weight of the protection afforded by a restraining order. On the other hand, the evidence is and the Court has found that the father is not in the country, has not been since before February 2012, and if he enters the country he will be arrested on the five outstanding charges because, according to the mother's evidence, "the warrant is a warrant of first instance". In my view, these conditions, and in particular the fact that he cannot enter the country without being arrested, adequately protect the mother and children.

85For all of these reasons, the Court finds that the evidence does not set out the need for a permanent restraining order either pursuant to section 35 of the Family Law Act or section 46 of the Children's Law Reform Act to protect the mother and the children.

86But for my finding that the mother and children are, at present, adequately protected because of the circumstances and conditions discussed above, the Court would have granted the restraining order requested. In cases of domestic violence, circumstances can change quickly. Like many victims of violence, the mother may have very limited, if any, access to information and she has no control over the police and the arrest and release process, in the event that the father enters the country and is arrested. The mother's lack of control and access to information mean that she and the children are vulnerable and their safety may become at risk quite quickly and unexpectedly. For these reasons, I dismiss the mother's motion without prejudice to her right to bring a similar application in the future should any of the foregoing conditions change.

NO CONTACT ORDER

87Section 28 (c)(i) of the CLRA permits the Court to make an order limiting the duration, frequency, manner and location of contact or communication between the parties, or between a party and the children, whenever the Court considers such an order to be necessary and proper in the circumstances.

88Unrestricted contact between the mother and the father in this case would place great stress on this mother and cause her significant anxiety because her fear for the emotional and physical safety of herself and the children is great. The Court saw firsthand at the hearing of this motion the powerful negative emotional effect the father's statements about the mother and his denials of abuse had on her during his submissions. She began crying and shaking to the point where the Court had to take a break.

89It is not in the children's best interests for their mother and primary caregiver, and the parent on whom they depend daily, to be constantly hyper-vigilant, stressed or anxious as would be the case if the Court did not restrict the father's ability to contact and communicate with the mother. For example, the mother's emotional state could impact on the mother's ability to be the best mother and caregiver to them that she can be and that they deserve. Her experience of stress and anxiety could also place unnecessary stress and anxiety on the children who would begin to worry about her. Further, if exposed to their father's aggressive attitudes, this too may unsettle them and it may undermine their confidence in their mother's ability to manage "their" world.

90Further, in this case there is no evidence to suggest that:

(a) The father has shown any insight into his behavior - how terrifying it has been for the mother and children, or how destabilizing his behaviours have been for the children. His focus, based upon his submissions, is on how he has been aggrieved;

(b) The father has not taken responsibility for his behavior. Based on his submissions, he continues to deny that he has ever done anything to threaten or harm the mother or the children; insisting instead, that the mother is fabricating everything; and

(c) The father's view of the situation has not changed.

91These factors, along with the reality that the father does not have to be physically present in Canada to engage in corrosive contact and communication with the mother and children, and the Court's inability to pinpoint the reason for the lack of threatening or abusive activity on the part of the father during the last 34 months, leaves the Court with little in the way of assurance that if it makes no order limiting the father's ability to contact or communicate with the mother and children, the outcomes identified above as possible will not come to pass. Both the children and the mother have lived through enough and this is not a chance the Court is willing to take.

92In addition, the current situation where the father does not have an ability to directly contact the mother or children because he does not know where they live or the mother's telephone number, and, where his contact with the children is limited to access supervised by the supervised access centre and via cards, gifts and photographs exchanged with the children via M.B., has thus far been effective in insulating the children and the mother from harm. I have no evidence to suggest that such restrictions will not continue to do so.

93For all these reasons and until such time as the father presents the Court with evidence showing that he has:

(a) Acknowledged his abuse of the mother and the children and the impact it has had on his children and the mother;

(b) Taken responsibility for his actions;

(c) Taken meaningful steps to address his behaviour so that it does not happen again; and,

(d) Can demonstrate to the Court that he has changed.

94It is neither necessary, proper, nor in the best interests of the children to permit unrestricted contact and communication between the father and the mother and between the father and the children. The no contact order the Court has made below formalizes the current arrangement and will serve to ensure that the children's continued well-being is not compromised.

FINAL ORDER

(1) The application of the applicant mother for a restraining order is dismissed without prejudice to her right to re-apply for one in the event that the respondent father gains entry into Canada and is either not arrested or is arrested and then released by the authorities without a condition prohibiting him from having contact or communicating with the applicant or the children;

(2) The respondent father is not to have contact with or communicate directly or indirectly, with:

(i) The applicant mother, except through legal counsel or through the supervised access center for the purpose of arranging Skype access or supervised access if the respondent father returns to Canada, or through M.B. for the purposes of sending and receiving cards, photographs and gifts for the children; or,

(ii) The children, except through the supervised access center for the purposes of Skype access or supervised access visits if the respondent father returns to Canada, or through his cousin, M.B., for the purposes of sending and receiving cards, photographs and gifts for the children;

(3) Oral submissions with respect to costs of this motion, if either party seeks costs and if the parties cannot resolve it on their own, will be heard on March 5, 2015, at 2:30 p.m. The purpose of that attendance will also be to set a date for a settlement conference with respect to the outstanding issues in this case (custody, access, and support).

(4) In the event that either party seeks costs of this motion, he or she will serve his or her Bill of Costs upon the other party by no later than February 24, 2015. Service of the Bill of Costs may be carried out by e-mail in accordance with the guidelines set for service by e-mail in this Court's November 7, 2015 order. Each party's Bill of Costs is to be filed with the Court by 2 p.m. on March 3, 2015.

(5) The respondent may participate in the March 5, 2015 attendance by way of conference call provided that he makes the appropriate arrangements with the Judicial Secretary, Pam Jazvac, in advance.

Released: February 18, 2015

Signed: "Justice Victoria Starr"