Court File and Parties

Date: October 26, 2020

Court File No.: D31309/19

Ontario Court of Justice

Between:

A.M. Acting in person APPLICANT

- and -

S.D. RESPONDENT

Counsel: Aglaia Lowo, for the Respondent

Heard: October 21, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] This was a trial of the parties' motions to change final parenting and child support orders regarding their 4-year-old daughter (the child).

[2] The parenting order sought to be changed is dated September 20, 2017 (the parenting order). Justice Sheilagh O'Connell ordered that the parties have joint custody of the child, with the respondent (the mother) having the right to make any final decision on any major issue affecting the child. The parenting order sets out that the child is with the mother on weekdays and with the applicant (the father) on weekends. Incidents of custody were included in the order.

[3] The father seeks sole custody of the child. He seeks this despite not having seen the child since July 29, 2019.

[4] The mother also seeks sole custody of the child. In her motion to change, she seeks an order that the father have access supervised by a professional access supervisor. The mother also seeks incidents of custody, such as the right to obtain government documentation for the child and to travel with the child outside of Canada for vacation purposes, without the father's consent. The mother is seeking a restraining order against the father.

[5] The mother also seeks to increase child support from that set out in the November 8, 2018 order of Justice O'Connell (the support order), based on the father's actual annual income.

[6] The parties provided their direct evidence by affidavit and were cross-examined. The parties each called one collateral witness. The father attached three additional short affidavits to his affidavit but did not produce these witnesses at trial. [1] These affidavits were of nominal value as they lacked any specificity and the deponents were not subject to cross-examination.

[7] The main issues for the court to determine are:

a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child regarding the parenting order?

b) If so, what parenting orders are now in the child's best interests?

c) Should a restraining order be made against the father?

d) If a restraining order is not granted, is it in the child's best interests to grant restrictions on contact and communication between the parties pursuant to clause 28 (1) (c) of the Children's Law Reform Act (the Act)?

e) Should the support order be changed in accordance with the father's income on an ongoing basis?

Part Two – Background Facts

[8] The father is 47 years old. The mother is 44 years old.

[9] The parties grew up together in Somalia. They both came with their families to Canada in the early 1990's.

[10] The parties were married in March 2015 and separated in September 2016.

[11] The mother has two children (ages 12 and 9) from another relationship who live with her and the child.

[12] The father issued an application for custody of the child on December 6, 2016. The mother sought orders for custody and child support in her Answer/Claim.

[13] The parenting issues were determined, on consent, by the parenting order of Justice O'Connell on September 20, 2017. The child support issue remained outstanding.

[14] On September 14, 2018, the matter was before Justice O'Connell. The father fired his counsel that day. Justice O'Connell endorsed that the father's position is that the final consent to the parenting order is a sham and that he did not consent to it, nor is it his signature on the consent that was reached in court that day. She adjourned the matter to permit the father to bring a motion to set aside the parenting order and scheduled the mother's summary judgment motion for child support.

[15] On November 8, 2018, Justice O'Connell dismissed the father's motion to set aside the parenting order. She also granted the mother's summary judgment motion and ordered the father to pay child support to the mother in the amount of $200 each month, based on an annual income of $25,000.

[16] On July 29, 2019, the father was charged with assaulting the mother. His criminal release conditions prevent him from having direct or indirect contact with the mother. Any access arrangements must be through a Family Court order and exchanges must be done through a mutually agreed upon third party.

[17] The father's parenting time with the child stopped. The criminal case remains outstanding.

[18] The father issued his motion to change on September 23, 2019.

[19] On October 1, 2019, at the mother's request, Justice O'Connell transferred the case from her court location to this court location.

[20] The mother filed her response to motion to change on November 4, 2019.

[21] On January 20, 2020, the motions to change came before Justice Roselyn Zisman. Justice Zisman suspended the father's parenting time set out in the parenting order, pending further order.

[22] In February 2020, the father was charged with threatening the mother and the child. The charges related to incidents that allegedly occurred prior to August 2019. These criminal charges also remain outstanding.

[23] The father has turned down proposals to have supervised access with the child.

[24] The parties have not had direct communication with each other since July 29, 2019.

Part Three – Parenting

3.1 Legal Considerations

3.1.1 - Material Change in Circumstances

[25] Section 29 of the Act provides the statutory authority for changing a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child

[26] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[27] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

[28] Worsening conflict can constitute a material change in circumstances affecting the best interests of the child. See: Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193, per Justice Robert Spence.

3.1.2 - Best Interests

[29] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[30] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the others, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.

[31] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[32] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy 2006, [2006] O.J. No. 1872 (ONCA).

[33] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

[34] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

3.1.3 - Access

[35] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[36] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

[37] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[38] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

3.2 – Positions and Evidence on Behalf of the Parties

3.2.1 – The Father

[39] The father submits that it is in the child's best interests that he be granted sole custody of the child. He said that he is prepared to grant the mother liberal access.

[40] The father claimed that he is better suited to make major decisions regarding the child. He emphasized the importance of the child receiving a public education. He alleged that the mother had neglected the educational needs of the child and her other children – that they often were not attending school.

[41] The father made vague allegations about the child being exposed to the mother's lifestyle, including criminality, addiction and associating with unsavoury persons. He did not approve of the environment in which the child is being raised.

[42] The father lives in his mother's home. He plans to live with the child there, where he has a bedroom set up for her. He set out many of the activities and outings that the child and he engaged in together.

[43] The father said that he has chosen not to have the supervised access offered to him because having only four hours with the child would "break her heart". He has not seen or spoken to the child since July 29, 2019.

[44] The father stated that he would not see the child if supervised access was ordered.

[45] The father also stated that he would not see the child if only day access was ordered.

[46] The father said he would only see the child if he could have full weekends with her.

[47] The father denied assaulting the mother on July 29, 2019 and claimed that she assaulted him. He also denied threatening the mother or the child. He did not want to talk about these incidents in any detail.

[48] The father's brother's wife testified that the father is a good father and that "all the stuff they are saying about him is a lie – the child is his top priority".

3.2.2 – The Mother

[49] The mother also asked for a sole custody order and incidents of custody that would permit her to obtain government documentation for the child and to travel with the child outside of Canada for vacation purposes, without the father's consent. She also sought an order that the father not be permitted to remove the child from Toronto without a prior court order.

[50] The mother described how the child is thriving in her care. The child was attending a private Islamic school but is now in public school. She said that she can no longer afford private school.

[51] The mother described how the child is well-integrated into her large family. The child has a close relationship with her siblings and with many cousins in Toronto.

[52] The mother and her sister both observed that the child has been doing much better since she stopped seeing the father. They said that the child used to have frequent tantrums and would often cry. She is now happy and calm. The mother worries about starting access again and the effect this could have on the child.

[53] The mother set out how she is afraid of the father as his aggression towards her and irrationality escalated after the parenting order was made.

[54] The mother submitted that the father is controlling and has little regard for court orders.

[55] The mother deposed that when the father disagreed with her he would become furious. He would tell her he could do whatever he wanted and could impose Sharia law on both her and the child. She said that he would often threaten to have the child circumcised. [2]

[56] The mother described an incident in April 2018 where she went to Texas for family reasons and the child stayed with her sister. She said that the father was told about this. [3] The father called the police and falsely reported that the child had been abducted.

[57] In February of 2019, the father registered the child in public school without prior notice to the mother, even though he knew she wanted the child to go to private school. The father testified that the child's education is too important, and he does not apologize for doing this.

[58] The mother said that the father overheld the child after July 21, 2019. He refused to return the child to her. She said that she went to the paternal grandmother's home on July 29, 2019 and picked up the child. She said that the father assaulted her in the lobby, including punching her in the jaw. She said that the child was in her arms while this happened. She stated that the father threatened to kill her. The father was criminally charged.

[59] The mother said that the father had multiple family members call her to try and pressure her to drop the criminal charges against him. This stopped, she said, after the family case started in the fall of 2019.

[60] The mother, at the outset of the trial, asked for a no access order. This was the first time she had made this claim. She did not plead it and she provided no notice to the father of this claim. Her claim until trial had been for a supervised access order.

[61] The court advised the mother that making the claim in this manner was unfair and prejudicial to the father. It is fundamental to the litigation process that applications be decided within the boundaries of the pleadings. See: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.). The mother indicated that she would proceed with her claim for supervised access.

[62] The mother testified that she was willing to start supervised access, provided that it was supervised by a professional access supervisor, such as Access for Parents and Children in Ontario (APCO) or the Children's Aid Society of Toronto.

[63] The mother has no confidence that the father would cooperate in permitting her to obtain the child's necessary government documentation, or be willing to permit her to travel with the child for vacation purposes, and asks the court to dispense with his consent. The father acknowledged that he is still holding the child's health card and birth certificate. He was upset at trial that the mother was able to apply for a new birth certificate.

3.3 – Reliability and Credibility

[64] The court found that the mother was a credible witness and that her evidence was reliable. The mother answered questions in detail. Her evidence was logical and consistent. Material facts were corroborated by her sister and police reports. Even the father's evidence, at times, reinforced the mother's version of events.

[65] The father was not a reliable or a credible witness. At times, it was difficult to ascertain if the father was lying, or if he just perceives events in a skewed manner – it was likely a bit of both. The father made multiple allegations against the mother, but provided little, if any, detail supporting them. He offered no independent corroboration in support of his allegations. Police reports and court records contradicted his version of events.

[66] The father would sometimes deny the obvious.

[67] One example was his insistence that Justice O'Connell had not made a final parenting order. [4] He also insisted that he did not consent to the order. The father claimed that both his and the mother's lawyers were taking advantage of them.

[68] It is very evident from the endorsement record that Justice O'Connell made a final order and a signed consent was provided to her on September 20, 2017. Justice O'Connell subsequently dismissed the father's motion to set aside her parenting order.

[69] The father made it clear that he did not feel he had to comply with Justice O'Connell's parenting order as he did not agree to it and it was not legitimate. He felt justified in making the unilateral decision to register the child in public school, despite the parenting order stating that the mother was entitled to make this decision if there was a dispute.

[70] The father reported to the police that the mother abducted the child in April 2018. This was either malicious, or another example of his skewed sense of reality. Neither interpretation is favourable for him.

[71] The father deposed that the mother texted him on the Thursday before his access weekend, telling him that she was in Texas, the child was with her sister in Brampton and that weekend he wouldn't be able to see the child.

[72] The father claimed that his relationship with the mother was "so good" up until that point. Yet, what he did after receiving the mother's text message was to call the police claiming the child had been abducted. The father continued to maintain at trial that this had been a reasonable step for him to take. Even accepting his version of events, this made little sense since he knew the child was in Brampton with the mother's sister, with the mother's approval.

[73] The mother's version of events made much more sense. She said that she had originally planned to travel to Texas the week before and made arrangements for the father to pick up the child from her sister's home for his weekend access. She wasn't able to travel to Texas for that weekend (and the father exercised his regular weekend access) and instead travelled to Texas the following week. She texted the father on the Thursday to confirm that she was in Texas and the child was with her sister. The mother's sister confirmed that she also spoke to the father (prior to the father calling the police) to confirm that the child was with her and that she would do the access exchange for the father's weekend access visit.

[74] The police occurrence report indicates that the father did not believe the mother's text or the mother's sister, when they told him that the child was with the sister in Brampton. Instead, he claimed that the child had been abducted. Why would he believe this when he claimed that he and the mother were getting along so well? The police quickly confirmed that the child was in Brampton, doing well and that there was no abduction.

[75] The police report from the July 29, 2019 incident sets out that the father kept blocking the mother from leaving the building with the child. There was mutual pushing and shoving. The father's anger then escalated, and he punched the mother twice in the head. Both parties claimed there was surveillance footage, but it was not produced to the court.

[76] The father gave other evidence that made little sense. The father claimed that the child lived primarily with him from August 2017, until the July 29, 2019 incident. If this was the case, it made little sense that he would agree to the child having her primary residence with the mother in September 2017.

[77] The father dramatically claimed that the child is in danger with the mother. Yet, he agreed to the child having primary residence with the mother, he has not made any reports of abuse to the police or to the Children's Aid Society, he did not bring any temporary motion to change the parenting order and he has chosen not to see the child for 15 months. How concerned can he really be? Further, despite having had the opportunity to provide specific evidence at trial, he failed to provide any particulars or independent evidence to support his multiple allegations against the mother. The mother denied all of the father's very general allegations.

[78] The father showed no insight at trial into the logical disconnect between his allegations against the mother and how he has dealt with them.

[79] The father complained about missing the child's birthday yet chooses not to see her if his access is supervised, or if only day access is ordered. He did not understand how problematic this is.

[80] Where the mother's evidence conflicted with the father's evidence, the court preferred the evidence of the mother.

3.4 - Findings of Fact

[81] The court makes the following findings of fact regarding the material facts in dispute:

a) The mother has been the child's primary caregiver.

b) The child's closest relationship is with her mother. The father has been absent from the child's life for 15 months – a significant portion of her life.

c) The father and his family were very involved in the child's life until July 29, 2019.

d) The child is thriving in the mother's care. She is responsibly attending to all the child's needs. She is a good mother.

e) The father is controlling, arbitrary and unreasonable. He is aggressive and threatening with the mother when he doesn't get his own way. He unilaterally registered the child in public school without the mother's consent. He unreasonably, and perhaps maliciously, called the police in April 2018 when she went to Texas. When he didn't get his own way, he refused to see the child.

f) On a balance of probabilities, the court finds that the father assaulted the mother in the presence of the child on July 29, 2019. [5]

g) On a balance of probabilities, the court finds that the father has threatened the mother and the child. He has threated to impose Sharia law on them and to have the child circumcised. He tells the mother that there is nothing that anyone can do about this. [6]

h) The father has extremely poor judgment. Many examples have been provided, the most glaring being his refusal to see the child. He cannot be trusted to make reasonable decisions regarding the child. He puts his need to be vindicated over the need of the child to have a positive relationship with him.

i) The mother has not excluded the father from the child's life. If anything, she accommodated his unreasonable behaviour for too long. The father has made the decision not to see the child.

j) The father demonstrated no insight into his poor conduct. He took no responsibility for his actions and why he has no relationship with the child at this time. He blamed everyone else – the mother, the police, the family law lawyers and, as he stated in his trial affidavit, "the failed system". This profound lack of insight makes him a very poor candidate to change his behaviour.

k) The father showed no understanding of child development and the impact his choice not to see the child could have on her. He cannot be trusted to make responsible decisions concerning her.

l) The child is doing well in the mother's care. The reduction in parental conflict since July 2019 appears to have improved the child's sense of stability and well-being.

m) The court has significant concerns that the father would not comply with a family court order. He continues to contest the legitimacy of the final parenting order. He breached that order by enrolling the child in public school behind the mother's back and by overholding the child in July 2019. However, he has complied with the no-contact criminal release order since August 2019.

3.5 - Material Change of Circumstances

[82] There have been material changes in circumstances affecting the child since the parenting order was made, including:

a) There has been a breakdown in the relationship between the parties. There is no positive communication between them. The father's criminal release terms prevent him from having direct or indirect contact with her. They cannot effectively make joint decisions concerning the child.

b) The father treated the mother in a controlling, coercive and abusive manner after the parenting order was made, making joint custody unviable.

c) The father has chosen to have no contact with the child for 15 months.

d) The father has shown extremely poor judgment and cannot be trusted to make responsible decisions for the child.

3.6 - Best Interests - Custody

[83] Based on these findings of fact, it is in the child's best interests for the mother to have sole custody of the child.

[84] It is also in the child's best interests for the mother to have the ability to obtain government documentation for the child and to travel with her outside of Canada for vacation purposes, without the father's consent. The court has no confidence that the father would exercise reasonable judgment and execute the necessary consents when requested. He continues to hold documentation for the child despite the fact the child is not with him – just more evidence of his controlling behaviour.

[85] The court also finds it is in the child's best interests to make an order that the father cannot remove the child from Ontario. The father acts in an arbitrary, unreasonable and unpredictable manner. The court does not trust his judgment – particularly when he does not get his own way.

3.7 - Best Interests – Access

[86] It is in the child's best interest that the father's access be supervised by a professional access supervisor. The reasons can be summarized as follows:

a) The father has not seen the child for a significant portion of her life. It must be confusing to her why her father has effectively abandoned her. She needs to be reintroduced to him in a safe and structured manner.

b) The father has acted in an irrational, unreasonable and unpredictable manner. The court does not trust him yet to exercise good judgment if he has unsupervised access with the child. It is concerned that:

i) He would share with the child his unsubstantiated allegations about the mother, undermining her sense of security.

ii) He would expose the child to harmful adult conflict.

iii) The father is aggressive when he doesn't get what he wants, placing the child at risk of physical and emotional harm. He already assaulted the mother when the child was in her arms.

iv) There is a real risk that the father would overhold the child.

c) The mother would be at risk of physical or emotional harm if she had any contact with the father. The father has been controlling, coercive and abusive to her. It would be harmful to the child to be exposed to this.

d) The father needs strict controls. He feels he can do what he chooses, when he chooses. The court agrees with the mother that family members are unable to provide the necessary controls to ensure the child's safety.

[87] The court recognizes that the father played a very important role in the child's life until July 2019 and that the child had a close relationship with him and his family. Ideally, the child should have a positive relationship with both the maternal and paternal families. The court would not have made a no access order even if the mother had pled that relief.

[88] The court also recognizes that the result of ordering supervised access may be that the father chooses not to see the child. This will be unfortunate for the child and the father. However, the court must make an order that is in the child's best interests and cannot put the child's safety at risk because the father says he will not see her if supervised access, or even day access, is ordered.

[89] It is unfortunate that APCO is not having in-person visits at this time due to the pandemic. It would be preferable that access start as soon as possible. APCO is offering virtual visits and those will be ordered until in-person visits can be accommodated.

[90] The court will also give the father the option of having in-person visits supervised by a professional private access supervisor such as Braydon Supervision Services or Side-by-Side. The court recognizes that the father is of modest means and cost is an issue. However, the father has a supportive family and if he wants to see the child, he should be able to get financial assistance to see the child until APCO opens.

[91] The court would want to see at least nine months of consistent and positive supervised access visits and responsible behaviour by the father before it would consider reducing the level of supervision of access.

[92] The court will order that the father pay any costs of supervised access.

Part Four – Restraining Order

4.1 - Legal Considerations

[93] The mother's request for a restraining order is made pursuant to section 35 of the Act and section 46 of the Family Law Act (FLA). Section 35 of the Act reads as follows:

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.

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.

[94] Section 46 of the FLA reads as follows:

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.

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:

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.

[95] 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. See: 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) or vulnerable persons 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.

c) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.

d) 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.

e) 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.

f) 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.).

g) 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.

h) 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. However, 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. Where serious behaviour has continued for "some period of time", that will be sufficient. See: Proevski v. Roffel, 2020 ONCJ 310.

i) 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.

j) 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.

k) 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.

l) 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) A no-contact or communication order made pursuant to section 28 of the Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

n) 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.

4.2 - Analysis

[96] The court finds that the mother has both a subjective and objective basis to fear for her safety from the father. As previously stated, he has been controlling, coercive and both physically and emotionally abusive to her.

[97] The court considered whether a no-contact order pursuant to section 28 of the Act would be sufficient to protect the mother. It considered that the father has complied with the no-contact order in the criminal release order since August 2019. The court also considered that there has been no Family Court restraining order to date, although there was no immediate need for one given the criminal court conditions.

[98] However, the court is not confident that the mother would be safe from the father without the more robust protection that a restraining order provides. While the father has complied with the criminal court's release order, he did not recognize the legitimacy of Justice O'Connell's parenting order and breached it. He reconstructs history in the way it suits him. He is prone to acting in an irrational manner. He feels aggrieved and externalizes blame for what has happened. The father's denial of any wrongful conduct and skewed sense of events only increases the risk to the mother. He needs clear boundaries and to know that violation of the restraining order will have criminal consequences.

[99] The father also testified that trial dates are being set in his criminal matters. He expressed confidence that the charges will be withdrawn (although no independent evidence was provided about this). The mother will need a protection order in place once the criminal release conditions end.

[100] The court is hopeful that the restraining order does not have to be indefinite. If the father can show compliance with this order for one year, it will consider that a material change in circumstances has occurred and will give strong consideration to changing the restraining order to a no-contact order under section 28 of the Act.

Part Five – Child Support

[101] At the outset of the trial, the mother sought to impute the father's annual income at $29,640 (minimum wage) for the purpose of changing the support order.

[102] The father provided evidence that he is earning $14.00 an hour and working 37.5 hours each week. This projects to an annual income of $27,300. In closing submissions, the mother was prepared to use this income for the purpose of the support calculation. The father asked to keep his support payments at $200 each month.

[103] It is appropriate that the father pay child support in accordance with his actual income. The Child Support Guidelines table amount for one child at this income is $227 each month. The father shall pay the mother this amount starting on November 1st, 2020 – the start date sought by the mother.

Part Six – Conclusion

[104] An order shall go terminating the parenting order of Justice O'Connell, dated September 20, 2017.

[105] A final parenting order shall go on the following terms and conditions:

a) The mother shall have final custody of the child.

b) The mother may obtain or renew all government documentation for the child, including passports, without the father's consent.

c) The mother, or her designate, may travel with the child outside of Canada, for vacation purposes, without the father's consent.

d) The father may have supervised access to the child every other Saturday, for up to two hours on the following terms and conditions:

i) The access must be supervised by a professional access supervisor. It can be APCO, Brayden Supervision Services or Side-by-Side, or such other organization agreed to in writing by the mother.

ii) Access shall start as soon the professional access supervisor can facilitate the visits.

iii) If the father chooses to use APCO, he shall have virtual visits once they can be coordinated by APCO, for a duration determined by APCO. This form of access will continue until APCO is open for in-person visits.

iv) The father shall pay any access costs charged by the professional access supervisor.

v) The father shall comply with all rules and procedures set out by the professional access supervisor.

vi) Once the father chooses the professional access supervisor, both parties shall complete the intake process as soon as possible.

[106] The support order of Justice O'Connell, dated November 8, 2018, is changed to provide that:

a) Based on an annual income of $27,300, the father shall pay the mother child support of $227 each month, starting on November 1, 2020. This is the Child Support Guidelines table amount for one child.

b) The father shall provide the mother with complete copies of his income tax returns and notices of assessment each year by June 30th, starting in 2021.

c) A support deduction order shall issue.

[107] Final orders shall also go on the following terms:

a) The father shall not remove the child from the City of Toronto without prior court order.

b) A separate endorsement for a final restraining order will be made. If the father is compliant with the order for one year this will be considered a material change in circumstances.

[108] If the mother seeks her costs, she shall serve and file her written costs submissions by November 6, 2020. The father will then have until November 20, 2020 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

[109] The costs submissions should be delivered or emailed to the trial coordinator's office on the second floor of the courthouse.

Released: October 26, 2020

Justice S.B. Sherr

Footnotes

[1] The court asked the father if he could bring these witnesses to court the following day. He declined, saying they would be at work.

[2] Section 268 of the Criminal Code states that this would be a criminal offence. It reads as follows:

Aggravated assault

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Excision

(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

[3] The father did not deny that he was told that the mother was in Texas and the child was with the mother's sister in Brampton.

[4] The father submitted that the difference in the date of the parenting order and the date it was signed is proof that the parenting order was not legitimate. Of course, that is not the case, as orders are often signed, entered and issued on different days than when they were made.

[5] The criminal court will determine if the father is guilty of the offence beyond a reasonable doubt.

[6] Again, the criminal court will determine if the father is guilty of these offences beyond a reasonable doubt.