ONTARIO COURT OF JUSTICE
BETWEEN:
Sorin Tarnovean Applicant
— AND —
Christina Aurora Collantes Respondent
Before Justice W. Kapurura
Heard on November 19, 20 & 21, 2024.
Reasons for Judgment released on December 2, 2024
Dumoluhle Siziba................................................................................... counsel for the applicant Viktoriya Terentyeva......................................................................... counsel for the respondent
JUSTICE W. KAPURURA:
Part One – Introduction
1This trial was about the respondent’s claim for a restraining order against the applicant pursuant to section 46 of the Family Law Act (the FLA). The parties have a five-year-old child together, TJ (the child). She further seeks an order dispensing with the applicant’s consent or signature when applying for or renewing the child’s identification documents.
2The applicant seeks an order dismissing the respondent’s claim. In the alternative, he seeks contact and communication orders pursuant to section 28 of the Children’s Law Reform Act (the CLRA).
3The parties both filed affidavit evidence for their examination-in-chief.
4The respondent called two additional witnesses. Her family doctor testified orally and was cross-examined. She filed medical records from the family doctor. Her counsellor was also called to testify. His oral testimony was stopped after it was discovered during cross-examination that the respondent had not provided a complete copy of her counselling records to the applicant as previously ordered by Justice S. Meyrick. The parties then agreed to exclude his evidence.
5The applicant called his father (the paternal grandfather) as his additional witness. He provided an affidavit for his examination-in-chief. He was cross-examined by the respondent.
6The court must determine the following issues:
a. Whether there was family violence between the parties.
b. Whether the applicant has established reasonable grounds to fear for her own safety
c. Whether a restraining order should be made, or in the alternative, whether contact and communication orders should be made pursuant to section 28 of the CLRA.
d. Whether it is in the child’s best interests to allow the respondent to apply for or renew the child’s passport, health card and other government-issued documents without the applicant’s consent or signature.
e. Whether additional terms for parenting exchanges should be made.
Part Two – Brief background facts
7The respondent is 38 years old.
8The applicant is 41 years old.
9The applicant was born in Romania and immigrated to Canada with his parents in 1995. He attended Seneca College and graduated with a diploma in marketing.
10The respondent is an aesthetician by profession. She is self-employed.
11The parties commenced a romantic relationship around 2018. The applicant was residing in Milton, and the respondent was residing in Toronto at the time.
12The parties lived together from around mid-2019 and separated on August 27, 2020. The child was born in December 2019.
13The applicant issued his application on December 31, 2021.
14The applicant works for Dynacare, a company that provides medical services. He works as a tele-interviewer in the company’s insurance department.
15The respondent owned [1] a home in Toronto. In June 2019, she leased out her house and moved into the applicant’s residence in Milton (the Milton property).
16In July 2020, the respondent sold her Toronto property. She continued to reside with the applicant in Milton.
17On August 27, 2020, the applicant was charged with the following (the 2020 charges):
i. Careless use of firearm, weapon, and ammunition.
ii. Assault.
iii. Mischief.
iv. Utter threats to cause death or bodily harm (three counts).
18The respondent was the complainant on the 2020 charges.
19The applicant’s bail conditions prohibited him from having direct contact with the respondent and coming within 500 metres of the Milton property until the investigating officer confirmed that the respondent had left the property.
20At the time of his arrest, the applicant was in possession of three firearms. He was also in possession of ammunition and magazines. They were all seized by the police.
21The applicant went to reside with his parents (the paternal grandparents) in Mississauga after he was released on bail. The child remained in the care of the respondent. The paternal grandparents facilitated parenting exchanges.
22Around November/December 2020, the applicant sold the Milton property. The respondent had moved back to Toronto at the time of the sale.
23In May 2021, the respondent’s mother (the maternal grandmother) jointly purchased a house in Thornhill (the Thornhill property) with the applicant.
24On May 30, 2021, the respondent signed an affidavit that was used by the applicant’s lawyer to seek a withdrawal of the 2020 charges.
25On July 6, 2021, the applicant’s 2020 charges were withdrawn by the Crown. He entered into a 12-month peace bond pursuant to section 810 of the Criminal Code (the 2021 peace bond). The peace bond required him to attend and successfully complete a provincially mandated PARS program. He was also prohibited from possessing weapons or applying for any firearms license. [2]
26On July 6, 2021, a court order was made for the forfeiture of the applicant’s three firearms, ammunition, and magazines.
27On November 17, 2021, the applicant was arrested again and charged with the following (the 2021 charges):
i. Assault.
ii. Assault with a weapon.
iii. Confinement.
iv. Damage to property not exceeding $5,000.00.
v. Utter threat.
vi. Failure to comply with recognition contrary to section 811 of the Criminal Code.
28The respondent was the complainant on the 2021 charges.
29On November 18, 2021, the applicant was granted bail, which restricted him from having contact or communication with the respondent.
30The 2021 bail conditions prohibited the applicant from attending within 100 metres of the respondent’s place of residence, employment, education, or where she was reasonably expected to be. He was prohibited from possessing any weapons as defined in the Criminal Code.
31On February 22, 2022, the parties executed detailed temporary minutes of settlement containing the following clauses: [3]
i. The respondent will have sole decision-making responsibility for the child.
ii. The applicant will have graduated parenting time with the child, whereby the respondent’s parenting time would increase from daytime visits to two overnight visits per month and eventually to two overnight visits per week.
iii. The applicant will pay the respondent child support for the child in the amount of $98.00 per month, commencing February 1, 2022.
32In February 2022, the applicant bought out the maternal grandmother’s interest in the Thornhill property. The maternal grandmother and her son then moved out of the property.
33On October 31, 2022, the parties attended a case conference. Justice M. Sirivar made the following temporary order on consent of the parties:
i. The child shall continue to reside primarily with the respondent.
ii. The applicant shall have parenting time with the child every weekend from Saturday at 10:00 a.m. until Sunday at 7:00 p.m.
iii. The applicant’s girlfriend, the paternal grandfather or any other mutually agreeable third party will facilitate parenting exchanges.
iv. Any communication between the parties shall be through a parenting application such as Our Family Wizard, Talking Parents or AppClose.
v. The respondent was given until November 14, 2022, to serve and file her Answer/Claim.
34The respondent filed her Answer/Claim on November 14, 2022. She sought parenting and child support orders. She also sought to set aside the minutes of settlement dated February 22, 2022.
35In April 2023, the respondent filed a police report after she observed some bruising on the child. This was after the child had returned from the applicant’s parenting time. She took the child to a police station to report the injuries and took him to the hospital after filing a report. No charges were laid against the applicant. The Children’s Aid Society investigated, and the respondent’s allegations of child abuse were not verified.
36On July 22, 2024, the applicant entered into a 12-month peace bond (the 2024 peace bond) which prohibits him from having contact or communication with the respondent except
i. Through a specified individual for purposes of arranging for parenting time.
ii. A family court order.
iii. Legal counsel.
37The applicant’s 2021 charges were withdrawn after he signed the 2024 peace bond.
38On September 14, 2024, on consent, Justice S. Meyrick made the following final order finalizing the parenting issues:
a. The child shall reside primarily with the respondent.
b. The respondent shall have sole decision-making responsibility for the child. She shall seek the applicant’s input on a major issue before finalizing it.
c. The applicant shall have parenting time with the child as follows:
i. Every other weekend from Friday after school until Monday, drop off at school.
ii. Every Tuesday after school until Wednesday morning drop off at school.
iii. If Monday is a holiday, the applicant’s parenting time shall extend to Tuesday morning, school drop off.
iv. When school is not in session, the parenting exchanges shall take place on the school grounds.
d. A schedule for holidays and special occasions.
e. The applicant shall pay the respondent support for the child in the amount of $300.00 per month.
39On September 14, 2024, Justice S. Meyrick referred the outstanding issue of a restraining order to trial.
Part Three – The claim for a restraining order and family violence
3.1 – Legal considerations
40The applicant’s request for a restraining order is made pursuant to section 46 of the FLA which reads as follows:
Restraining order
- (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.
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.
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:
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.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
41The legal principles for the court to apply in determining whether to grant a restraining order were summarized by Justice S.B. Sherr in G.P. v. R.P., 2023 ONCJ 388 as follows:
a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
b) Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365.
c) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
d) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.
e) Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra.
f) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.
g) The test for a restraining order is both obective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. [4]
h) The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326.
i) 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. See: Fuda v. Fuda, supra.
j) 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. See: Fuda v. Fuda, supra.
k) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
l) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242; Jumale v. Mahamed, 2022 ONSC 566.
m) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., 2021 ONCJ 665.
n) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., supra.
o) A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.
42Subsection 24 (4) of the Children’s Law Reform Act (the CLRA) sets out factors relating to family violence. It reads as follows:
Factors relating to family violence
24(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.
43Subsections 18 (1) and (2) of the CLRA defines family violence as follows:
(1)“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)
(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
44The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:
The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).
45Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.
46The court is very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.
47Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.
48The existence of criminal charges related to the allegations of family violence, and the outcome of those charges, may be relevant in addressing the family violence claims in Family Law proceedings, but they will not be determinative of whether the violence occurred. See: Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.), at para. 41; Matthew v. Barazmi, 2021 ONSC 7240 (S.C.J.). By the same token, the fact that criminal charges have been withdrawn is not determinative, having regard for the lower standard of proof in Family Law proceedings as compared to criminal prosecutions. See: M.A.B. v. M.G.C., 2022 ONSC 7207.
49Genuine fear of psychological harm justifies a restraining order: see the decision of Justice Kiteley in Lawrence v. Bassett, 2015 ONSC 3707, at para. 18.
3.2 – Positions of the parties
3.2.1 – The respondent
50The respondent seeks a final restraining order pursuant to section 46 of the FLA. She asks for an order that the applicant not contact her or come near her home, work, or place of worship. She also asks for an order dispensing with his consent when applying or renewing the child’s official government-issued documents. She seeks an order addressing exchanges for parenting time.
51The respondent testified that the applicant was financially, physically, emotionally, and sexually abusive towards her.
52The respondent deposed that she had a difficult pregnancy and was unable to work during her pregnancy. She resided at the applicant’s home, and he paid all household expenses. She stated that he demanded that she pay rent, and if she did not have the money, he insisted that she do things of a sexual nature to please him. She told the court that when she received money from her parents or her Employment Insurance, she had to surrender the funds so that he would not abuse her sexually. When the applicant gave her money, even for the newborn baby, he demanded it back.
53According to the respondent, the physical abuse started when she was pregnant. She deposed that they once had an argument when she was pregnant. The applicant allegedly pushed her, and she landed on her stomach. She stated that following the incident, he acted as if nothing had happened. On another occasion, she stated that he pushed his fingers into her chest to the point that she was forced to take a step back. She deposed that he once held her wrist and prevented her from leaving a room.
54During cross-examination, the respondent testified that her fear started when the applicant started threatening her with his firearms. She stated that the respondent would sleep with his big rifle beside the bed. She described the applicant as a bully.
55The respondent testified that the parties had an argument on August 27, 2020. The applicant then physically attacked her by hitting his head against her forehead and threatening to ‘chew’ her face off. The child was in her arms. She contacted the police. When the police attended, they seized the applicant’s firearms. One of the firearms was loaded.
56The respondent stated that during their cohabitation, the applicant played graphic, violent shooting video games. She claimed that he had different weapons, including firearms, a machete, brass knuckles, knives, daggers, bows, arrows, and ninja darts. She claimed that the applicant put his long riffle on his side of the bed in the master bedroom and slept next to it.
57The applicant was charged with the 2020 criminal charges (see above) following the August 27, 2020, incident.
58The respondent deposed that she thought of commencing a family court application in December 2020, but she faced threats from the applicant. She stated that the applicant was calling her using blocked numbers [5] and forced her to download an application (app) called Signal that interferes with the tracing of phone calls.
59According to the respondent, the applicant threatened to kill her if she sent him to jail, and he threatened to commit suicide if she left him. She then signed an affidavit on May 30, 2021, that was submitted to the Crown’s office to have the applicant’s 2020 charges withdrawn.
60The respondent stated that after the applicant purchased the Thornhill property with her mother (maternal grandmother), she visited the property to see her family members and to allow the applicant to have parenting time with the child. She deposed that the incidents of family violence started again. She told the court that in September 2021, she went to the applicant’s house with the child following the maternal grandmother’s birthday event. She claimed that around 4:00 a.m., he entered the room she was sleeping and kicked the door. He started screaming at her, threatening to “lash at (her) like a wild dog and chew (her) face off.”
61The respondent testified that a few weeks later, following the September 2021 incident, there was another incident where the applicant pushed her down to the floor, and her head hit the wall. The child was present and crying. She attended her doctor’s office and was treated for abrasions on her knees and fingers. [6]
62In November 2021, the police attended the applicant’s residence (in Thornhill) after he called the police. The respondent was at the property. The applicant was arrested and charged with the November 2021 criminal charges (see above).
63The respondent claimed that on March 26, 2022, the applicant approached her in violation of his bail conditions. This was during a parenting exchange facilitated by her brother.
64The respondent testified that around June 26, 2022, she saw some disturbing postings on the applicant’s Instagram account in which he posted that his temper could go “from zero to death row in seconds” and that “it is better to be dangerous than weak.”. She told the court that she became very fearful and changed her place of residence. She has not disclosed her address to the applicant since then. She concluded that the only reason she has been safe and not harassed or threatened by the applicant since mid-2022 is because he does not have her address.
65The respondent’s evidence was that she sustained significant emotional scars from the family violence she experienced. She testified that she experiences flashbacks of the violent incidents, has nightmares, and has disturbed sleep. She told the court that she is currently on leave from her work. She stated that she is currently seeing a counsellor at the Domestic Abuse and Sexual Abuse Care Centre at Mackenzie Health. She stated that she is also taking some medications to assist with her PTSD symptoms.
66The applicant called Dr. Salib, her family physician, to testify on her behalf. She has been his patient since 2020. His medical records show that on October 27, 2021, he observed ‘bilateral knee skin abrasions and left index finger middle phalangeal abrasion.’ He told the respondent to report spousal abuse to the police. He was also concerned about the safety of the child.
67Dr. Salib testified that on July 30, 2024, he referred the respondent for a psychiatric consultation. The referral form shows that the respondent was complaining of post-traumatic stress disorder (PTSD) symptoms comprising anxiety, insomnia, agitation, and panic attacks. In his referral report, he stated that the medications that he had prescribed for the symptoms were not effective.
3.2.2 – The applicant
68The applicant testified that a restraining order would negatively impact his aspirations for career advancement. He stated that he plans to obtain a license to sell life insurance. The licensing process is regulated by FSRA, Ontario’s regulatory agency. According to the applicant, obtaining and maintaining the license would require that one be of good character. He stated that he was pursuing the licensing process and had some interviews with an insurance broker the following week to be considered for a position. He seeks an order dismissing the respondent’s request for a restraining order. Instead, he asks the court for:
i. Either an order pursuant to section 28 of the CLRA restricting either party’s ability to attend at the other’s home or place of employment, or
ii. An order requiring the respondent to re-file her request for a restraining order closer to or following the expiration of the applicant’s current peace bond (that is, around July 2025), with leave of the court.
69The applicant also seeks an order requiring both parents’ signatures when applying for or renewing the child’s government-issued documents.
70The applicant denies assaulting the respondent or threatening to kill or harm her. He describes all police complaints made by the respondent as false.
71The applicant deposed that he was very supportive of the respondent during their relationship. He stated that in 2018, she had bunion surgery on her foot that limited her mobility. He carried her around the house and drove her to medical appointments.
72The applicant testified that after the respondent became pregnant, they decided to reside in the Milton property as the house was bigger than her house in Toronto.
73The applicant testified that their relationship started to change after the child was born in 2019. He stated that they started to have conflict. He blamed the conflict on her family trying to influence their decision-making for the child. He gave an example of the maternal grandmother not agreeing with the spelling of the child’s name and insisting that the child ought to be baptized and raised a Catholic and not as Christian Orthodox. He felt that her family had no regard for his culture.
74According to the applicant, the respondent started suffering from postpartum depression around March 2020, when the Covid-19 pandemic started. He stated that as the lockdowns progressed, she experienced severe mood swings. He testified that in April 2020, they had an argument over financial issues. The respondent got angry, and she kicked him on the side of his ankle and punched him in the face. He stated that he was able to restrain her, and he escaped. He stated that his parents encouraged them to go for counseling following this incident.
75The applicant told the court that around March or April of 2020, his parents invited the respondent to their home with the hope of helping her improve her mental health. She stayed with them for about a week. When she returned, their arguments continued, and at one point, she punched him, and he was bruised.
76The applicant testified that the parties tried to attend counseling, but the respondent quit after a few sessions. He claimed that he felt he was walking on eggshells as the respondent was suffering from postpartum depression.
77The applicant deposed that in July 2020, the respondent sold her house in Toronto and made a significant profit. He claimed that the maternal grandmother started pressuring her to have her name added to his Milton property. The respondent became angry after he refused, calling him a ‘waste man.’ He stated that in August 2020, she agreed to sign a prenuptial agreement on August 26, 2020. The next day, the applicant called the police, and he was charged with assault against her. The police seized his firearms at the time of arrest.
78The applicant provided an affidavit that was signed by the respondent on May 30, 2021, in which she stated that she was not afraid of him harming her physically and was seeking to have his charges withdrawn. On July 6, 2021, his 2020 criminal charges were withdrawn by the Crown in favour of the 2021 peace bond.
79The applicant claimed that after he purchased the Thornhill property with the maternal grandmother in May of 2021. The respondent set up a work studio at the property and regularly attended to meet with her clients. She had since obtained subsidized housing in Toronto and could not have her clients come to her home. He stated that it was never clear if they had reconciled.
80Around November 16, 2021, conflict started again between the applicant and the respondent. He claimed that her family contributed to the conflict. He stated that he did not feel safe and filed a police report about a death threat he received from the maternal grandmother. He testified that the police declined to charge the maternal grandmother, and he claimed that they were not willing to help him. On November 17, 2021, the applicant sent text messages to the respondent and her family asking them not to attend the Thornhill property. His evidence was that despite the text messages, she attended with the maternal grandmother on November 17, 2021. The police attended and the applicant was charged with assault and was placed on bail conditions with a no-contact term.
81According to the applicant, no incidents of violence have occurred since October 2021.
82The applicant opposes the respondent’s request to dispense with his service when applying for or renewing the child’s passport and other official government-issued identification documents. He asserted that following separation, he signed the child’s passport application without incident and without court involvement. He stated that he had also provided his consent to allow the child to travel internationally with the applicant.
83The paternal grandfather testified on the applicant’s behalf. He provided an affidavit for his examination-in-chief. He deposed that the paternal grandparents have been involved in their grandchild’s life since birth and have provided emotional and financial support to the parties.
84The paternal grandfather stated that during the Covid-19 lockdowns in 2020, he observed the respondent raising her voice and shouting at the applicant. In the spring or early summer of 2020, he observed the applicant with a black eye. He stated that he encouraged the applicant to enroll in counseling with the respondent. On a different occasion, he attended the parties’ home and noticed that the applicant had bruises or scratches to his face. Again, he encouraged the applicant to seek counseling.
85The paternal grandparents helped with facilitating parenting visits between the applicant and the child after the applicant was arrested and charged in August 2020. He testified that one day the respondent approached his car during a parenting exchange and told him she wanted to speak to the applicant. He reminded her that he was on bail conditions prohibiting contact between them. He claimed that she rushed off in the direction of the applicant’s location and spoke to him. The paternal grandfather videotaped the incident.
86The paternal grandfather told the court that after the applicant was arrested, the respondent started showing up at the grandparents’ home unannounced. They reminded her not to attend as they did not want the applicant to breach his bail conditions. His evidence was that she continued to attend unannounced with the child despite their requests. He stated that they could not turn her away as they also wanted to see their grandchild. He recalled the child’s birthday event in December 2020 when the respondent attended their home unannounced, and the applicant was at their home.
87The paternal grandfather deposed that the grandparents were unhappy when they learned that the maternal grandmother and the applicant had jointly purchased the Thornhill property as they were worried about the relationship between the applicant and the respondent. The grandparents felt that the maternal grandmother was manipulating the applicant.
88The paternal grandfather stated that the respondent was not telling the truth to the court, and she was not afraid of the applicant. He does not think a restraining order is an appropriate remedy. His evidence was that he did not observe any physical, emotional, financial, or verbal abuse by the applicant towards the respondent.
3.3 – Credibility and reliability
89Certain aspects of the respondent’s evidence were credible, and certain portions of her evidence were not credible.
90In an effective cross-examination by the applicant’s counsel, the following challenges with respect to the respondent’s evidence were revealed.
91The respondent signed an affidavit on May 30, 2021, stating that she was not afraid of the applicant harming her physically. In the affidavit, she also said that on August 27, 2020 (when the applicant was charged with the 2020 charges), both parties had been engaging in a verbal argument and were loud and aggressive. She asked to have the charges withdrawn. The charges were subsequently withdrawn after the applicant signed the 2021 peace bond. During cross-examination at trial, the applicant stated that she had lied in the May 30, 2021, affidavit. She testified that the applicant physically attacked her on August 27, 2020.
92The respondent was not credible with respect to her claims that the applicant was financially abusive towards her. She deposed in her trial affidavit that when she left the Milton property in 2020, she noticed that the applicant had emptied the box that contained the child’s $4,000.00 that had been received from her baby shower. During cross-examination, she admitted that she had not disclosed in her trial affidavit that the applicant sent her the money by e-transfer a few days after she left the home. However, the court accepted her explanation that the money was taken without her knowledge, and it became complicated for her to communicate with him as he was now under a no-contact order from the criminal court.
93The respondent stated that she struggled financially when she moved into the Milton property with the applicant. She was pregnant and was receiving Employment Insurance (EI). She claimed that the applicant demanded any money she received. During cross-examination, she admitted that around that time, she had sold the Toronto property, which had appreciated in value. She claimed that the property was registered in her name, but it was her family’s investment. Her evidence with respect to the financial arrangements she had with her family was vague.
94The respondent accused the applicant of breaching his no-contact conditions after he was charged with the 2020 criminal charges. She stated that he made her download an app called Signal that interferes with the tracing of phone calls. She said that he was threatening her with physical harm at the time. The app then allowed them to communicate, in breach of his bail conditions. Her evidence with respect to these breaches was not credible. The paternal grandfather testified that around the same time, she was showing up unannounced at their home, and the paternal grandparents became concerned that her attendance would lead to the applicant breaching his bail conditions as he was residing there. The paternal grandfather testified that on one occasion, she attended the child’s birthday event at the paternal grandparents when she was aware that the applicant had parenting time and that she would be in contact with him by attending. The paternal grandfather also video-taped an incident when she approached the applicant during a parenting exchange.
95The respondent was not credible with respect to her failure to acknowledge how some of her actions may have contributed to the continued conflict between the parties. The respondent moved back to Toronto following the applicant’s 2020 criminal charges. She then started attending the Thornhill property after the applicant purchased the Thornhill property with the maternal grandmother. She was aware of their challenging relationship. She started meeting her clients at the Thornhill property. Eventually, the conflict started again.
96The respondent’s evidence regarding a pattern of family violence against her was credible and reliable for the following reasons:
i. She stated she became fearful when the applicant started threatening her with guns. He would sleep with a rifle by his bedside. The applicant admitted that he had firearms on his Milton property.
ii. The respondent described an incident in the fall of 2021 when she claimed that the applicant pushed her to the floor and her head hit the wall. Her family physician, Dr. Salib, confirmed that she attended at his office on October 27, 2021. He provided medical records showing that he observed her with bilateral knee skin abrasions and left index finger middle phalangeal abrasions. He advised her to report spousal abuse to the police.
iii. She was clear that their relationship was characterized by conflict. The applicant and the paternal grandfather also confirmed this.
iv. In their conflict, it was the applicant who was arrested twice and charged. The applicant has been on two peace bonds, the 2021 peace bond, and the 2024 peace bond. This confirms that the respondent required court orders to keep her safe.
v. The court accepts her evidence that sometime around June 2022, the applicant was cautioned by the police not to attend her residence. The next day, the applicant posted threatening messages on social media. Her evidence was that she became fearful and changed her residence. She has not disclosed her address since that time. The applicant agreed that since June 2022, there have not been any reported incidents.
vi. The child was exposed to several incidences of family violence. Dr. Salib testified that he was also concerned about the safety of the child.
97The respondent was credible in her evidence that following violent domestic episodes, the applicant would feel remorseful, before another cycle of abuse. This claim was supported by the following evidence:
i. She provided a text message from the applicant dated March 31, 2020. In the text message, he was apologizing to her. In another text message from April 1, 2020, he reminded her of the good things that had happened in his life since he met her and promised her that everything would be fine. She testified on that day, his parents had attended at their home on March 31, 2020, and witnessed the applicant uttering threats to the respondent. The paternal grandparents then removed her from the Milton property and took her to their home.
ii. She provided a letter written by the applicant dated July 2, 2020, in which he promised to:
a. Always treat her with respect.
b. Never harm her or place her in danger mentally, emotionally, or physically.
c. Not to yell or frighten her.
d. Avoid fighting.
e. Not swear at her in a hurtful manner.
iii. In May 2021, the respondent executed an affidavit seeking to have the applicant’s 2020 criminal charges withdrawn. The charges were subsequently withdrawn in July 2021. A few months later, the family violence started again. The applicant was arrested again in November 2021 and charged with several counts of family violence, including a breach of the 2021 peace bond.
iv. She testified that sometimes, he would send old pictures of them happy together to persuade her to forgive him.
v. She stated that she received an engagement ring from him in 2019 when he proposed. However, during domestic arguments, he would take it away and then present it back when he was remorseful as a symbol of his love for her.
98The respondent was credible with respect to the issue of signing the child’s documents. She acknowledged that she has never had any challenges seeking the applicant’s signature with respect to traveling with the child or renewing the child’s identification documents.
99Dr. Salib’s evidence was credible with respect to the treatment he provided to the respondent in October 2022. However, his evidence with respect to family violence was not reliable, as he acknowledged that what he recorded was what the respondent was reporting to him. His evidence with respect to the respondent’s mental health challenges and his referral to a psychiatric assessment was credible.
100The applicant was credible in his allegations that the respondent’s family was contributing to the parties’ conflict. He provided text messages he sent to the respondent and her family members, including the maternal grandmother, asking them to notify him in advance if they were attending at the Thornhill property. Despite the messages, the respondent and her mother attended, and immediately conflict started once they entered the home.
101The applicant was credible when he acknowledged that the relationship was characterized by conflict.
102The court accepted the applicant’s evidence that, at one point, the respondent physically attacked him, leaving him with a black eye. This was supported by the paternal grandfather’s evidence.
103However, several claims by the applicant that he was the victim of family violence were not credible. At one point, he called the police to the Thornhill property to file a complaint against the maternal grandmother and he ended up being arrested himself. He interacted with the police several times when he was arrested and when he was accused of breaching his no-contact terms. At not time did he disclose any violence against him. He is not seeking a restraining order against the respondent.
104The applicant was credible when he stated that he had never withheld his consent to allow the child to travel or to have the child’s identification documents obtained or renewed. This fact was admitted by the respondent.
105The applicant was not credible with respect to the allegations of family violence. He dismissed the respondent’s claims entirely and accused her of not telling the truth. He stated that there is no basis for her to fear him. However, he signed two peace bonds. In his first peace bond, he was ordered to attend a PARS program to address issues of family violence. The paternal grandfather testified that he advised the parties to seek counselling. When he was arrested and charged in 2020, his firearms were seized by the police.
106The applicant was not credible when he claimed that the respondent forced him to download the Signal app for communication. The evidence shows that both parties engaged in behavior that contributed to breaches of his no-contact orders.
107The paternal grandfather’s evidence was generally biased in favour of the applicant. In his affidavit, he accused the respondent of not telling the truth. However, in the same affidavit, he stated that many of the incidents that the respondent referred to would have happened when he was not there. He accused the respondent of making false police reports in the past. In the same affidavit, he referred to a time when conflict escalated at the parties’ home. He painted a picture of the respondent being the abuser. However, during cross-examination, he acknowledged that he had never seen the respondent assaulting the applicant.
108According to the respondent, the paternal grandparents ‘removed’ her from the parties’ home in March 2020 after the applicant threatened her. They took her to their home for about a week. She provided text message exchanges confirming that she was at the grandparents’ home and that the applicant was apologizing for his actions. The paternal grandfather did not refer to these events in his evidence.
109The paternal grandfather was credible with respect to the incidents that he observed. He testified of an incident when the respondent approached the applicant during a parenting exchange (the applicant was under a no-contact order from criminal court). He also testified of the time when the respondent attended at the paternal grandparents’ home unannounced, and they were concerned that she would make the applicant breach his no-contact conditions.
3.4 – Analysis
110The parties’ relationship was characterized by the applicant engaging in coercive and controlling behaviour leading to an incident, followed by an apology and remorse, and the family violence starting again after a brief period of calm.
111The facts of this case illustrate a classic example of a cycle of abuse.
112As noted by the court in Volgemut v. Decristoforo (supra), abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive.
113The court understands that there were challenges and inconsistencies with respect to some of the respondent’s evidence at trial. However, inconsistent evidence is common for victims of domestic violence. [7]
114Based on the court’s findings on credibility and reliability above, the court makes the following findings of contested facts:
a. The applicant has perpetrated family violence against the respondent.
b. There is an incident when the respondent physically attacked the applicant. However, the evidence reflects a consistent pattern of abuse by the applicant against the respondent.
c. The family violence occurred between 2019 and 2022. It was serious and frequent. It included threats using firearms.
d. The family violence was physical and emotional in nature.
e. The child was exposed to family violence.
f. The family violence has caused the respondent to fear for her safety.
g. The applicant has not taken steps to address further family violence. He denies it.
h. The respondent has taken steps to address the negative impact of family violence on her. She is seeing a counsellor at the Domestic Abuse and Sexual Abuse Care Centre at Mackenzie Health. Her family doctor has referred her to a psychiatric assessment. She has not disclosed her current address to the applicant.
3.5 – Should a restraining order be made?
115The applicant testified that a restraining order would negatively impact his career plan to obtain a license to sell life insurance. If he were serious about his career aspirations, he would have been expected to behave accordingly. The evidence does not support that. From August 2020 to the present, he has remained on court-ordered conditions restricting his contact with the respondent. He was on two separate bail conditions and signed two separate peace bonds. His current peace bond will expire in July 2025.
116The court will make a restraining order against the applicant for the following reasons:
a. The respondent has established reasonable grounds to fear for her own safety.
b. The applicant has perpetrated family violence against the respondent.
c. Some of the family violence involved firearms.
d. The family violence occurred in cycles.
e. The applicant denies all acts of family violence entirely. He does not acknowledge any wrongdoing.
f. The applicant testified that the respondent suffered from post-partum depression following the birth of their child. Even though his evidence was disputed by the respondent and was not supported by any medical evidence, he continued to engage in family violence against her around that time. If his claims were true, she was mentally and emotionally vulnerable at the time.
g. The applicant’s 2024 peace bond prohibits him from possessing any weapons as defined in Criminal Code (which includes firearms). This prohibition will expire in July 2025. He did not rule out the possibility of acquiring firearms again in the future (which he described as his “legal right”).
h. There is a reasonable expectation that the applicant’s conduct will continue without court involvement. The court is concerned that the expiration of the 2024 peace bond in July 2025 will provide the applicant with an opportunity to engage in another cycle of abuse.
i. The respondent has been severely impacted by family violence. Her family doctor testified that she is exhibiting PTSD symptoms comprising anxiety, insomnia, agitation, and panic attacks. He referred her for a psychiatric assessment.
j. The court does not agree with the applicant’s position that since there have not been any reported incidents since June 2022, a restraining order is not warranted. This is because he has been on no-contact conditions for that entire period. As stated in F.K. v. M.C (supra), the court should be alert to the fact that a party may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends.
k. The court does not agree with the applicant’s counsel’s submission that, as an alternative, the respondent should re-apply for a restraining order around July 2025, closer to the expiry of the 2024 peace bond. The court needs to send a message to the applicant that family violence will not be condoned. Further, delaying until July 2025 will add an unnecessary barrier and increase costs to the respondent in pursuing the relief she urgently requires.
117The court will grant the applicant’s request to apply for or renew the child’s documents without the applicant’s signature. Given the cycle of abuse described above, the court is concerned that any communication associated with the documents may provide an opportunity for further family violence. Further, the respondent has final sole decision-making responsibility for the child.
118The court will also grant restrictions regarding pick up and drop off to ensure that the applicant feels safe during the exchanges and during school events.
Part Five – Conclusion
119A final order shall go on the following terms:
a. Pursuant to section 46 of the FLA, the applicant shall not attend within 100 metres of the respondent’s home, place of work, place of worship, or any other place he may reasonably expect her to be, with the following exceptions:
i. The applicant has permission to attend the child’s school function or school event on the school grounds/property at the same time as the respondent, provided that the applicant sends a notice to the respondent via AppClose (or parenting application) not less than 48 hours before the event/function advising of his intention to attend.
ii. The applicant has permission to attend the school or the school grounds to drop off the child at school or pick up the child from school at the commencement of his parenting time.
b. The applicant shall not communicate directly or indirectly with the respondent except in accordance with the terms of the final parenting order dated September 20, 2024. Such communication shall occur through AppClose or a parenting application.
c. When school is not in session, the respondent may designate a third party to assist her with the pickup and drop off arrangements for the child.
d. This restraining order is effective from December 2, 2024.
e. This restraining order shall remain in effect until a further order of the court. If there is no incident within the next 36 months from the date of this order, the applicant may move to terminate the restraining order.
120The respondent has permission to apply for or renew the child’s passport, health card, and any government-issued identification documents for the child without the signature or consent of the applicant. The applicant’s signature is dispensed with. The respondent shall provide the applicant with a photocopy of the new or updated documents within 5 days of receipt.
121If either party seeks costs, they shall serve and file written submissions by December 16, 2024. The other party will then have until January 4, 2025, to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle.
122The court thanks counsel for their excellent presentation of this case.
Released: December 2, 2024.
Signed: Justice Wiriranai (Wiri) Kapurura
[1] She claimed that it was her family’s investment property. [2] The peace bond did not have a no-contact term. [3] Both parties received independent legal advice before signing the document. The document was not entered into a court order. [4] The court notes that there is jurisprudence the person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.). [5] The applicant’s bail conditions prohibited him from contacting her. [6] The family doctor, Dr. Salib, testified on behalf of the respondent. [7] See: A.E. v. A.B. (supra); N.M. v. S.M. (supra).