Court File and Parties
Ontario Court of Justice
Date: July 6, 2020
Court File No.: Toronto D40418/20
Between:
Laura Proevski Applicant
— And —
Levi Roffel Respondent
Before: Justice Robert J. Spence
Heard on: July 3, 2020
Reasons for Judgment released on: July 6, 2020
Counsel:
- Ms. Zakiya Bhayat, counsel for the Applicant
- Respondent in person
Judgment
R. J. SPENCE J.:
1: INTRODUCTION
[1] The applicant issued her application on May 5, 2020 seeking a restraining order against the respondent.
[2] The respondent initially took the position that the court had no jurisdiction to make a restraining order as the parties were not spouses and had not cohabited with one another, being threshold issues under section 46(2) of the Family Law Act.
[3] However, as the matter progressed it became apparent that the applicant was instead seeking an order pursuant to section 35 of the Children's Law Reform Act (Act).
2: BRIEF BACKGROUND
[4] The parties were in a short-term intimate relationship from October 2019 until December 2019.
[5] The applicant has children from a prior relationship.
[6] Following the end of the parties' relationship, according to the applicant, the respondent "frequently" initiated text message communications with her. The respondent did not deny this.
[7] Following the breakup, the respondent messaged the applicant that he intended to call the children's aid society (CAS) to complain about her parenting. On February 3, 2020 he texted her, stating [my emphasis]:
You obviously didn't get my text message so you must have blocked me on every avenue of communication. I wanted to give you an opportunity to discuss some of the things you've told me in the past before I call CAS on you.
[8] The respondent made no allegations in his Answer that would suggest the applicant was parenting her children in a way that the CAS needed to become involved in her life and in the lives of her children.
[9] According to the applicant, she contacted the Toronto Police Service (TPS) on at least two occasions to report the respondent's harassing behaviour. The applicant's evidence contained email exchanges between herself and the two TPS detectives with whom she was in contact, confirming her evidence that she involved the police.
[10] In the first of the TPS detective emails dated April 6, 2020, the officer wrote the following to the applicant [my emphasis]:
In regards to the incident reported on February 03, 2020 I am following up with you to offer any further service you may require and to also advise you that the initial officers sent Levi an email to caution him from contacting you.
[11] The applicant's evidence included a copy of a personal photograph of herself that she says the respondent accessed and circulated from her Facebook page. According to the applicant the respondent had access to her Facebook password from the time they were in their relationship. The personal photograph revealed a part of the applicant's body in an unclothed state.
[12] The applicant filed a text message from the respondent dated February 3, 2020 in which he stated [my emphasis]:
I spoke with Elizabeth [a personal friend of the applicant] …. I have spoken to a great deal of your friends over the past month and have obtained a great deal of information that directly contradicts everything you've told me.
[13] The applicant responded by saying:
Please do not contact me anymore and leave me alone please.
[14] The respondent continued to initiate text communications with the applicant.
[15] In his unsigned Answer, the respondent accused the applicant of telling lies during their relationship and being deceitful.
[16] The respondent denied receiving any communication from the police.
[17] On April 29, 2020, the applicant saw the respondent sitting in his vehicle which she says was
parked directly in front of my vehicle, blocking it, which was parked in my apartment building's parking lot
[18] She says that when the respondent saw her and her partner coming toward her car, he immediately left. As the applicant and her partner drove toward their destination at Walmart, she became concerned when she saw the respondent's vehicle near hers. She telephoned the police to report what was happening as she feared for her safety.
[19] The respondent's version of the "parking lot" incident is that he was at the applicant's building on "private business". And after he left the parking lot the applicant and her partner pursued him at high speed.
[20] The respondent says that the applicant and her partner chased him and attempted to run him off the road. He states:
After that attempt on my life, I dialed 911. I spoke with an Ontario Provincial Police dispatcher and gave the officer my location and the details of the other vehicle and occupants. The officer advised me to make an attempt to lose the applicant and her partner. I was able to lose the applicant and her partner by driving in excess speeds of 180 km/hr. Upon finding a safe place to park, I was transferred to the Toronto Police Services to give them my current location. When I felt that I was comfortable leaving my position, I returned back to continue my private business.
[21] The court finds this version of events by the respondent simply unbelievable. Apart from the fact that he did not sign, date or swear his "evidence", he filed no police report to corroborate his story. Nor did he explain how or why his "private business" happened to occur directly in the parking lot of the applicant's building.
[22] Nor is it believable that upon reporting an "attempt on his life" the police would advise him to drive in such a way as to "lose" the pursuing vehicle.
[23] Furthermore, the respondent lives in Waterloo, Ontario and, according to the applicant (not disputed by the respondent), his family lives in Chatham, Ontario. Nor does he have any family or friends in the applicant's building.
[24] And finally, this incident occurred after the TPS detective confirmed in her email to the applicant that the respondent has been cautioned by TPS to refrain from contacting her.
[25] For all these reasons, I find the respondent's version of the facts to lack credibility.
[26] The parties' evidence was given to the court as set out in footnote 1 above. There was no sworn oral testimony. Neither party objected to the court deciding this matter on written material alone.
3: THE LAW
[27] Section 35 of the Act states:
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:
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.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
[28] The case of E.O. v. O.E., [2019] O.J. No 6705 is a decision of Justice S.E.J. Paull. In his reasons for judgment, Justice Paull neatly summarizes the principles that various courts have set out and which can assist courts in deciding whether to make an order under section 35 of the Act.
[29] Beginning at paragraph 109, Justice Paull states [my emphasis]:
- The legal principles for the court to apply are as follows:
a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
b. 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. F.K. v. M.C., 2017 ONCJ 181.
c. 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. McCall v. Res, 2013 ONCJ 254.
d. The person's fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.
e. A person's subjective fear can extend to both the person's physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
f. 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. Fuda v. Fuda, supra.
g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behavior 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. Purewal v. Purewal, 2004 ONCJ 195.
h. 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. Fuda v. Fuda, supra.
i. 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. D.C. v. M.T.C., 2015 ONCJ 242.
j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.C. v. M.T.C., supra.
k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.C. v. M.T.C., supra.
m. Further, the court should be alert to the fact that parties may improve their behavior when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.
4: ANALYSIS
[30] Without a doubt, the imposition of a restraining order is serious business and it should not be made lightly.
[31] From shortly after the time the relationship ended right up until just before the applicant commenced her application seeking a restraining order, the respondent said things and did things which by any measure could only be regarded as harassing.
[32] Regardless of the respondent's explanation for his behaviour, the applicant had a subjective fear for her safety or for the safety of her children. This was a subjective fear which had a reasonable basis.
[33] While the respondent may not have made any direct threats to the applicant about her children, the fact that he threatened, without basis to call the CAS, potentially threatened the integrity and stability of her family, which necessarily includes her children.
[34] I am mindful that the period over which this behaviour occurred was not lengthy in absolute terms. However, it began shortly after the end of the relationship and it continued right up until just before the applicant issued her application.
[35] The respondent was aware that the applicant wanted him to stop communicating with her. As noted earlier, she asked him to "please stop".
[36] Not only did he continue to directly impose his communications on her but, as noted earlier, he communicated indirectly by speaking to a "great deal" of her friends.
[37] As noted earlier, the respondent himself stated that he was aware she was attempting to "block" his communications with her. But he continued nonetheless to importune and push himself on her.
[38] This was not a case where the objectionable conduct occurred for a short period of time and then ceased without the need for court involvement. It occurred over a relatively short period of time and ceased only when the application was issued.
[39] Justice Paull references the Purewal decision, supra, as an example of a case where a restraining order will be issued when there is a "lengthy period of harassment", the Purewal decision does not actually state that there must be a lengthy period of harassment as a precondition to making a restraining order. Rather, that court said at paragraph 38 [my emphasis]:
there needs to be some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over some period of time.
[40] In my view, the "intrusive, troubling and meddlesome behaviour" of the respondent did occur for "some period of time". That behaviour showed no signs of coming to an end.
[41] In my view, there was no need for the applicant to sit back and let that behaviour continue for months before issuing an application, just so that she could argue that the bad behaviour continued for a lengthy period of time.
5: CONCLUSION AND OBSERVATIONS BY THE COURT
[42] I am satisfied that the evidence presented to the court and the legal principles in the various cases cited by Justice Paull, require the court to make a restraining order under section 35 of the Act.
[43] Prior to the commencement of argument, I expressed my concern to the respondent about his apparent lack of preparedness, as reflected in the material he had filed. I asked him if he wanted to request an adjournment. I did tell him that if he made such a request, I would give the applicant an opportunity to respond. However, the respondent stated simply that he wanted to get on with the matter.
[44] What particularly concerns the court in this case is that the respondent is a paralegal, licensed by the Law Society of Ontario. While I do not purport to make any determination whether the respondent's behaviour toward the applicant is somehow a breach of the Law Society professional conduct rules, this could be an issue for the respondent, something which could affect his livelihood. While the court does not intend to send this decision to the Law Society, the respondent should seriously reflect on his behaviour and the court's comments in these reasons.
[45] A restraining order will issue in Form 25F prohibiting the respondent from having any direct or indirect contact with the applicant or her children and being within 200 metres of any location where he reasonably expects the applicant or her children to be located, including the applicant's place of residence or employment. This restraining order shall take effect immediately and shall expire automatically on July 6, 2023, unless otherwise either terminated or extended by court order.
[46] Applicant's counsel shall forthwith complete a Form 25F reflecting this order and deliver it to the court for signing.
[47] Should the applicant seek her costs, she shall deliver her costs submissions to the trial coordinator's office no later than 21 days from the date of this judgment. The respondent will have 14 days thereafter to file his response. No reply will be permitted. Both sets of submissions shall be limited to two pages, exclusive of attachments including any Bill of Costs. Any case law shall be referenced in the body of the submissions, including case citations, and not filed as separate attachments. Submissions shall be in 12-point font with not less than 1.5 line spacing.
Released: July 6, 2020
Justice Robert J. Spence (signed electronically)
Footnotes
[1] The evidence upon which the court relied is the sworn affidavit of the applicant dated June 29, 2020. The respondent failed to file any sworn documentation. His sole filing with the court consisted of an unsigned and undated Answer. However, even though the respondent's Answer was undated and unsworn, the court has nevertheless considered the contents of that document in these reasons.
[2] Or at any other time to the court
[3] As noted earlier, the court specifically rejects as not credible the respondent's explanation surrounding the parking lot incident.
[4] Argument was made by teleconference as the court had not yet resumed in-person sittings due to Covid-19 restrictions.
[5] This fact came out during the first case conference held prior to the scheduling of the argument.
[6] The children's proper names and birthdates as well as the applicant's birthdate shall be included in the Form 25F, as well as the applicant's current residence address and, if applicable, her place of employment.