DATE : December 21, 2021 COURT FILE NO. D42007/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

M.H.S.

LINDA CHOI, for the APPLICANT

APPLICANT

- and -

M.R.

GLENDA PERRY, for the RESPONDENT

RESPONDENT

HEARD: DECEMBER 17, 2021

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] The parties have both brought motions for temporary parenting orders regarding their two children, ages 5 and 2 (the children).

[2] The applicant (the father) seeks a temporary order that the children have their primary residence with him. In the alternative, he seeks an order for equal-parenting time with them.

[3] The respondent (the mother) seeks temporary orders for primary residence and sole decision-making responsibility for the children, supervised parenting time for the father and a restraining order against the father. She seeks temporary orders that the father deposit his passports and the children’s passports with the court and that he not be permitted to remove the children from the City of Toronto.

[4] The court read the affidavits of the parties. The mother’s first affidavit attached medical reports from her family doctor and psychiatrist. The court also read affidavits from the mother’s brother (I.R.) and mother (the maternal grandmother). The parties also filed business records from the Children’s Aid Society of Toronto (the society). Both parties referred to selected records during the motion which were marked as exhibits.

[5] Pursuant to paragraph 3 of subrule 14 (17), subrule 1 (7.2) and rule 2 of the Family Law Rules (the rules), the parties agreed that additional oral evidence would be provided on the motions. Each party was permitted to cross-examine the other for 45 minutes and each party had 15 minutes for re-examination. This assisted the court to achieve the primary objective set out in subrule 2 (2) - to deal with the case justly. The court was much better able to assess the conflicting evidence with this focused testing of it.

[6] The main issues for the court to determine on these motions are:

a) What temporary parenting orders are in the children’s best interests?

b) Should a restraining order be made against the father, or in the alternative, should restrictions on communication and contact between the parties be made pursuant to section 28 of the Children’s Law Reform Act (the Act)?

Part Two – Background facts

[7] The father is 34 years old. He was born in Afghanistan.

[8] The mother is 27 years old. She was born in Iran and moved to Canada with her family when she was 9 years old.

[9] The parties are cousins. They had an arranged marriage in July 2011 when the mother was 17 years old and the father was 24 years old. At the time, the mother resided in Canada and the father resided in Afghanistan.

[10] The mother sponsored the father to come to Canada once she turned 18 years old. The father arrived in Canada in January 2015. The parties began to cohabit together for the first time.

[11] The parties separated in October 2019. The children resided with the mother after the separation.

[12] The father deposed in his affidavit that he began seeing the children in January 2020 for 6-8 hours each day, a few days each week. At the hearing of the motions, he claimed that he was spending much more time with the children than he had set out in his affidavit. He admitted that he never had overnight parenting time with them.

[13] The mother had a mental health breakdown and was hospitalized from May 27, 2021 until July 26, 2021. During this time, the children resided with and were cared for by the maternal grandmother.

[14] The children resided with the mother after July 26, 2021. She received parenting assistance from the maternal grandmother. The father continued to have his day parenting time with the children.

[15] The father did not return the children to the mother after a visit on September 17, 2021.

[16] The father did not permit the mother to see the children in person after September 17, 2021. He permitted her to have virtual contact.

[17] The father issued this application on October 22, 2021. He did not serve it on the mother.

[18] The mother retained counsel and brought a without notice motion on November 19, 2021. The court endorsed that the mother had established a prima facie case of an abduction risk and of being at risk of physical harm if the father received notice of the motion. The court adjourned the motion for service on the father and made temporary without prejudice orders, including:

a) The father shall arrange through counsel for the immediate safe delivery of the children to the mother.

b) The mother shall have exclusive parenting time with the children, and the children shall have their primary residence with her until further court order - the maternal grandmother to be present during this parenting time.

c) The children shall not be removed from the City of Toronto without prior court order.

d) Police enforcement of the order.

e) The father shall deposit all his passports, together with the children’s passports from all countries, either with the court, or with his counsel, if she is willing to accept them and agree that they are not to be released to him pending further court order.

f) A restraining order.

[19] The children were delivered to the mother on November 19, 2021. They continue to live with her.

[20] The matter returned to court on November 25, 2021. After submissions, the matter was adjourned on additional temporary, without prejudice terms to permit the mother to respond to the affidavit material filed by the father. The terms included the following:

a) The father shall have parenting time with the children, supervised by a professional third-party parenting supervisor. He may choose one of Renew Supervision Services, Brayden Supervision Services or Side-by-Side Supervision Services and notify the mother through counsel of his choice.

b) The father shall pay the fees of the professional parenting time supervisor.

c) Starting on December 4, 2021, the father may have up to 6 hours of parenting time on both Saturday and Sunday each week.

d) Through counsel, the father is to advise the mother each week, at least 72 hours in advance, about how much parenting time he will exercise and on which days.

e) The children shall have their primary residence with the mother.

f) The restraining order is amended to permit this parenting time.

[21] The father did not comply with the court’s order to deposit his passports and the children’s passports with either the court or his counsel.

Part Three – Brief summary of the narratives of the parties

[22] The father deposed that he was a very involved parent prior to the parties’ separation. He said that he continued that role after the separation. He expressed many concerns about the mother’s parenting. He said that she frequently hit and verbally abused the children, particularly the oldest child. He said that the mother has significant mental health issues and does not take her medication.

[23] The father deposed that the mother would also frequently scream at him and hit him.

[24] The father testified that he did not bring the matter to court after the parties separated because the maternal grandmother had assumed the primary parenting role for the children.

[25] The father said that the maternal grandmother and I.R. urged him to take the children in July 2021 when the mother was experiencing mental health issues prior to her hospitalization. He claimed that the maternal grandmother supported his taking the children on September 17, 2021.

[26] The father deposed at the hearing that the children are in danger in the mother’s care. He testified that he also feels this way about the children being cared for by the maternal grandmother. He feels that it is in the children’s best interests to live with him. He did not make a parenting time proposal for the mother, other than his alternative request for equal-parenting time.

[27] The mother denied the father’s allegations of her physical abuse of him and the children.

[28] The maternal grandmother denied ever having agreed with the father that he should take the children to live with him.

[29] The mother deposed that the father has been physically, emotionally, psychologically and financially abusive to her and the children. She set out numerous examples in her affidavit material.

[30] The mother deposed that except for her period of hospitalization, she has always been the children’s primary caregiver and the parent responsible for looking after their emotional and physical needs. She deposed that the father has exaggerated his involvement in parenting the children. The mother says that the children are doing very well in her care. The maternal grandmother presently lives with the mother and assists her in parenting the children.

[31] The mother testified that she is very afraid of the father. She is also afraid that the father will abduct the children. She deposed that the father would frequently threaten to abduct the children to Germany or Afghanistan and brag to her about his police connections and how she would be unable to stop him.

[32] The mother’s fear of the father was exacerbated by his overholding of the children and his refusal to let her see them in person after September 17, 2021.

[33] The father denied all of the mother’s allegations.

Part Four – Parenting

4.1 Legal considerations

[34] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsection s 24 (2) to (7) of the Act.

[35] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

[36] A party cannot use self-help to establish a new status quo. In Raifi v. Raifi, 2014 ONSC 1377, the court stated at paragraph 21 and 22:

21. The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be trusted with custodial authority they would likely abuse. Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113

22. Were only a short amount of time has elapsed between the deliberate creation of a new status quo in the hearing of the temporary motion, the court will be more inclined to presume that her restoration of a previous successful status quo is appropriate. Kennedy v. Hull, 2005 ONCJ 275, 2005 O.J. 4719.

[37] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[38] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[39] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[40] Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence. It reads as follows:

Factors relating to family violence

(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.

[41] Family violence has been given a comprehensive and useful definition in subsections 18 (1) and (2) of the Act. The definition of family violence in subsection 18 (1) of the Act reads as follows:

“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;

[42] Subsection 18 (2) of the Act reads as follows:

“Family violence”

(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

(i) the killing or harming of an animal or the damaging of property.

[43] Subsection 33.1 (2) of the Act addresses the importance of parties protecting children from conflict. It reads as follows:

33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

[44] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[45] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

[46] A custodial parent must not just accommodate access, they must facilitate it. See: Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

[47] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, 2015 ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v. Danis, 2021 ONSC 3610; Pinda v. Pankiw, 2018 BCSC 190.

[48] Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

[49] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[50] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[51] Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.

[52] The party who seeks to reduce normal parenting time 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 ONCJ 52807, [2003] O.J. No. 2946 (OCJ).

[53] The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[54] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.

[55] The court has taken these factors into consideration, where relevant, in determining what parenting orders are in the children’s best interests.

4.2 Analysis

4.2.1 Primary residence and decision-making responsibility

[56] The court finds that it is in the children’s best interests on a temporary basis that they have their primary residence with the mother and that she be granted sole decision-making responsibility for them.

[57] The mother has always been the primary caregiver for the children. They have done well in her care. She is the person with the closest relationship with them.

[58] The mother experienced major mental health issues that required hospitalization from May 27, 2021 to July 26, 2021. This is a concern. However, the mother filed current medical reports from her family doctor and psychiatrist indicating that she is stable, engaging with treatment and is compliant with her medication.

[59] A 2019 medical report filed by the father about the mother confirms that she has some cognitive challenges. This was apparent to the court when she was examined at the hearing. She had difficulty understanding questions unless they were phrased simply. She struggled with remembering dates and the sequence of events. This adversely affected the reliability of some of her evidence – particularly about the timing of events.

[60] However, the court found the mother to be a credible witness. She was clear and consistent on the most important evidence, such as the father’s family violence, his threats of abducting the children and his obstruction of her attempts to see the children after September 17, 2021.

[61] The mother receives considerable parenting and emotional support from the maternal grandmother. The children have a very close relationship with the maternal grandmother. The father said that he has trusted the maternal grandmother to ensure that the children are well-cared for. The maternal grandmother did not minimize the mother’s mental health issues in July 2021. She appears to be protective of the children. As long as the maternal grandmother resides with the mother, the court is satisfied that the mother can adequately look after the children.

[62] The mother’s brothers, sister and brother-in-law are also positive supports for her. The mother was described as a loving and capable parent who has been functioning well since her release from the hospital.

[63] The father did not satisfy the court that the mother has ever been emotionally or physically abusive to the children. He reported this to the society and these concerns were not verified. A society worker noted that pictures of the children that the father had sent to prove injuries to the children were historical.

[64] The court did not find the father to be a credible witness. He avoided difficult questions at the hearing. He has acted in a manipulative manner. Examples will be set out below.

[65] Despite his belief that the children were in danger with the mother, the father did not bring the matter to court for two years, even though the society’s business records revealed that he consulted a lawyer in late 2019. He did not seek overnight parenting time at any time.

[66] The father has not paid any child support to the mother since their separation in October 2019, despite having worked and having been able to pay support. The mother does not work. At times, she and the children have had to rely on food banks.

[67] Making matters worse for the mother, the father applied for the Canada Child Benefit for the children in April 2021. He started receiving this in May 2021 and continued to receive these benefits that should have been going to the mother.

[68] In MacDonald v. Connell, 2021 ONSC 7769, Justice Cheryl Robertson described this same scenario of a father improperly applying for the Canada Tax Benefit while not paying child support as coercive and controlling behaviour. It is financial abuse and family violence as defined by the Act.

[69] The mother had been living in a rental unit that was leased in the father’s name. She would transfer funds into the father’s bank account to pay the rent. The father had the mother transfer to him a rent payment for July 2021 even though he had terminated the lease and no one lived in the unit in July 2021. He did not return this money to the mother. This is further evidence of financial abuse.

[70] The father did not proceed to court when the mother was hospitalized. He did not oppose the maternal grandmother caring for the children.

[71] The father did not start a court application after the mother was released from the hospital. He did not even seek additional parenting time.

[72] What the father did do was appalling. He took the children for a visit on September 17, 2021 and refused to return them to the mother.

[73] The father then took steps to exclude the mother and her family from the children’s lives, including:

a) He refused to allow her in-person contact with the children. He claimed that the mother did not ask for this. This was not believable.

b) He only permitted her virtual contact with the children.

c) He did not enroll the oldest child in school. He conceded at the hearing that he did this because he was afraid that the mother would pick the child up from school. As a result, the child did not go to school while in the father’s care. This was contrary to his affidavit where he claimed that he had tried to enroll the child in school but blamed the mother for failing to provide him with the necessary documentation.

d) He excluded the mother as a contact for the younger child’s daycare and he instructed the daycare to give her no information. He put a line through “second parent” on the application.

e) The father claimed in his court material that the mother knew where he lived. However, he conceded in cross-examination that he was trying to conceal his location from her. It became evident that the mother did not know where he was living.

f) He started a court action but then took no meaningful steps to serve the court papers on the mother – likely hoping to establish a new status quo. The father said that he had no way of serving the mother with the court papers since he did not know where she lived. This was nonsense. He testified that he had been picking up the children for visits from three different locations, including the maternal grandmother’s home. Even if he didn’t know the mother’s address, he had ample evidence to bring a motion for substituted service and bring the case to the mother’s attention.

The father also put an incorrect address for the mother on the court documents. He knew that she hadn’t lived at that address since July 2021 because the lease had been in his name and he had terminated it.

[74] Instead of taking responsibility for his actions, the father blamed his former lawyer for telling him to take these actions. To her credit, his current lawyer acknowledged that what the father had done was improper.

[75] The father demonstrated absolutely no insight into how these actions harmed the children. The older child did not attend school at an important stage of her development. The children were prevented from seeing their mother. The father’s actions informed the court that he will put his own needs ahead of those of the children’s. This was strong evidence of poor judgment and poor parenting.

[76] The father continued to denigrate the mother and her family at the hearing. He frequently smirked as the mother was testifying. The court has no confidence that he would facilitate the children’s relationship with her if they were placed in his care. The mother, on the other hand, has facilitated the father’s relationship with the children.

[77] The without notice motion brought by the mother was granted in part because she was very afraid of the father and how he would react when he found out that she had brought the matter to court. Her fears were borne out. Despite the restraining order, on November 19, 2021, the father tried to contact the mother. He called the maternal grandmother who was in a car with the mother and the mother’s brothers. I.R. began taping the call when the father became threatening and abusive. The court heard the audio of the call. The father was agitated and aggressive. The certified transcript and translation of the call indicates that the father was threatening and abusive to the maternal grandmother and to I.R. Prior to the call being taped, I.R. deposed that the father had said to the maternal grandmother that she might live 1 day or 2 days and said to I.R., “I won’t let you live, you cannot walk in Canada from me”. I.R. deposed that he reported this to the police.

[78] Once again, the father did not take responsibility for his conduct. He admitted the contents of the audiotape. However, he blamed his former lawyer for telling him he should contact the mother. When it was pointed out that he had deposed that he could not reach his former lawyer that day because she was in an immigration proceeding, he then said that his former lawyer’s assistant told him to do this. This was part of a pattern of the father making up evidence as he went along to address multiple contradictions.

[79] It is apparent to the court that there is a significant power imbalance between the mother and the father. The father is university educated. He deposed that he had planned to earn a Master’s degree in Economics. The mother has cognitive and mental health challenges. She is very vulnerable. The father appears to have taken advantage of this power imbalance. It is easy for him to threaten and intimidate the mother. Even if he has no intention of abducting the children from Canada, it is easy for him to control the mother by telling her how he has powerful friends who will assist him with any abduction. She believes him. He is powerful to her.

[80] Although the evidence hasn’t been thoroughly tested yet, at this stage, the court finds that the father likely physically and psychologically abused the mother and that he would hit and yell at the children.

[81] The mother reported these concerns to the society and the maternal grandmother, although she says that she did not tell the society the full extent of the abuse – that is not surprising given the dynamics between the parties.

[82] The court finds that it is not in the children’s best interests to leave the issue of decision-making responsibility silent on a temporary basis. Important decisions may need to be made about the children, especially in the midst of a pandemic. Further, the father has tried to exclude the children from the mother. Clear boundaries need to be established to prevent further manipulation by him and his disruption of the children’s lives.

4.2.2 Parenting time

[83] The court finds that on a temporary basis it is in the children’s best interests for the father’s parenting time to be supervised by a professional parenting time supervisor. This needs to be ordered to ensure the physical and emotional safety of the children. Based on the father’s disdain expressed for the mother and her family, the father’s interactions with the children need to be strictly supervised to ensure that he does not undermine the children’s sense of security and stability by manipulating and undermining their relationships with the mother and the maternal family.

[84] The court also has some concern that the father could abduct the children. He has already acted unilaterally and attempted to exclude the children from the mother. He failed to comply with the court order to deposit all his passports and the children’s passports with either the court or his previous lawyer as ordered. At the court appearance on November 25, 2021, the father’s former counsel apologized for the oversight in not having the passports deposited. The court expected them to be deposited by now.

[85] The father’s breach of this important order increases the risk concerns.

[86] The father also gave confusing and conflicting evidence about his passports. He claimed to have three passports. One Canadian passport that was active. One passport from Afghanistan that was active and one passport from Afghanistan that is void. On cross-examination, it was evident that the Afghanistan passport that the father claimed was active had expired in 2020. He said at one point it was expired, at another that it was active. Regarding the void Afghanistan passport, the father acknowledged that his date of birth on it was wrong. He blamed the mother for this. That made little sense. He also initially denied traveling on this passport but later conceded he had traveled on it when directed to the stamps on the face of it.

[87] We may never know how many passports the father has and under what passports he might travel.

[88] The mother deposed that the father has no roots in Canada. He says that he is unemployed. Most of his family are in Germany. She fears that he will take the children there.

[89] The court finds that it is in the children’s best interests at this stage to visit with the father for up to 6 hours once each week. There is absolutely no basis to support the equal-parenting time order sought by the father in these circumstances. These visits can take place on either Saturday or Sunday.

[90] The father will be able to choose the professional parenting time supervisor. He may choose one of Renew Supervision Services, Brayden Supervision Services, Side-by-Side Supervision Services or Access for Parents and Children in Ontario (APCO) and shall notify the mother through counsel of his choice.

[91] The court recognizes that the father may be unable to afford to pay for the supervisor for 6 hours each week, so he can choose to have a shorter visit or no visit at all in any week. He must let the mother know through counsel when he will be exercising his visit and for how long at least 72 hours in advance. The father will be required to pay the costs of the parenting time supervisor.

[92] If the father chooses APCO as the parenting time supervisor, he will be subject to its wait-list and the maximum hours and frequency of parenting time that APCO permits. This will be much less than 6 hours each week.

[93] The father will also be required to obtain and pay for the parenting time observation notes. He shall provide them to the mother’s counsel at no cost once he obtains them.

[94] The father has been asking to be able to speak Dari with the children during his parenting time. At this time, this is not in the children’s best interests. The father is manipulative and will likely demean the mother and her family to the children if given the opportunity. It is important that the supervisor understand what the father is saying to the children and that the observation notes be accurate. The father speaks English well. The parenting time shall be conducted in English.

[95] The court will order that the father shall not remove the children from the City of Toronto and police enforcement of this order.

[96] The father shall deposit with the court all of his and the children’s passports from all countries, together with an affidavit attesting that these are all the passports in his possession or control. He must provide proof to the mother’s counsel that he has done this before any parenting time takes place.

[97] The father may bring a motion to court, on notice to the mother, if he requires the release of one of his passports to travel. If the mother does not consent, the court will determine whether the passport should be released, and on what terms.

Part Five – Restraining order

5.1 Legal considerations

[98] 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.

[99] 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.

[100] 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) 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.

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.

5.2 Analysis

[101] The court finds that the mother has established an objective and subjective basis to fear for the safety of herself and the children. A temporary restraining order will be granted on the terms sought by the mother.

[102] The court finds that the father has subjected the mother and the children to family violence. This violence has been physical, emotional, psychological and financial. It has been persistent. The father has acted in a controlling and coercive manner towards the mother.

[103] There is a power imbalance between the parties that the father has taken advantage of. He has been manipulative and dishonest. The court does not trust him at this point.

[104] Several factors increase the risk to the mother and the children including:

a) The father’s breach of court orders.

b) The father’s reaction to the mother obtaining the without notice order on November 19, 2021.

c) The father’s anger and disrespect towards the mother and the mother’s family.

d) The risk of the father abducting the children.

[105] The court finds that the mother and the children cannot be adequately protected on a temporary basis by just ordering restrictions on communication and contact between the parties pursuant to section 28 of the Act.

Part Six – Roadmap forward

[106] So what can the father do to earn the trust of the court and change this order?

[107] The father should do the following:

a) Comply with all court orders.

b) Exercise his parenting time consistently and responsibly.

c) Rebate to the mother the Canada Tax Benefits that he improperly received.

d) Provide complete and timely financial disclosure. He has been ordered to provide the mother with this by January 31, 2022.

e) Pay child support in accordance with his ability to earn income.

Part Seven – Conclusion

[108] A temporary order shall go as follows:

a) The children shall have their primary residence with the mother.

b) The mother and the children must reside in the same home as the maternal grandmother.

c) The mother shall have sole decision-making responsibility for the children.

d) The father shall have parenting time with the children on the following terms and conditions:

i) The parenting time shall be fully supervised by a professional third-party parenting supervisor. The father may choose one of Renew Supervision Services, Brayden Supervision Services, Side-by-Side Supervision Services or APCO and notify the mother through counsel of his choice.

ii) The father shall pay the fees of the professional parenting time supervisor.

iii) The father shall obtain and pay for the observation notes of the professional parenting time supervisor and provide them free of cost to the mother’s counsel.

iv) The parenting time shall only be conducted in English.

v) The father shall deposit with the court all of his and the children’s passports from all countries, together with an affidavit attesting that these are all the passports in his possession or control. He must provide proof that he has done this to the mother’s counsel before any parenting time takes place.

vi) The father may have up to 6 hours of parenting time on either Saturday or Sunday each week, subject to the waitlist and times that are available if he chooses APCO as the parenting time supervisor.

vii) Through counsel, the father is to advise the mother each week, at least 72 hours in advance, about how much parenting time he will exercise and on which days.

vii) The father shall not denigrate the mother or the maternal family to the children. If he does, the visit should be stopped.

e) Neither the father, nor his agents, shall remove the children from the City of Toronto.

f) Pursuant to section 36 of the Act, all peace officers, wherever the children are located, including the Toronto Police Service, OPP, RCMP or Canada Border Services, are directed to enforce this order, and if requested by the mother, locate, apprehend and deliver the children to the mother. This term will expire in six months.

g) A separate restraining order endorsement will be made. The November 25, 2021 restraining order is terminated.

h) This order replaces all prior orders.

[109] If the mother seeks costs, she shall serve and file written submissions by January 5, 2022. The father will then have until January 19, 2022 to serve and file his written response. If costs submissions are made both parties should file bills of costs within these timelines. The costs submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[110] The court thanks counsel for their professional presentation of the motions.

Released: December 21, 2021 _____________________ Justice S.B. Sherr