DATE: September 13, 2023 COURT FILE NO. D40528/20 ONTARIO COURT OF JUSTICE

B E T W E E N:

G.P. NILUFA HUSEIN, for the APPLICANT APPLICANT

- and –

R.P. RESPONDENT ACTING IN PERSON

HEARD: SEPTEMBER 11, 2023

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the applicant’s request for a restraining order against the respondent pursuant to section 46 of the Family Law Act (the FLA). In the alternative, she seeks orders restricting the respondent’s contact and communication with her and their children pursuant to section 28 of the Children’s Law Reform Act (the Act).

[2] The respondent seeks an order dismissing the applicant’s claims.

[3] The parties agreed to a focused trial of these issues. They both filed affidavit evidence as their direct evidence. They were permitted to provide additional oral direct evidence. They cross-examined each other. The respondent filed business records from the Children’s Aid Society of Toronto (CAS) and both parties relied on this evidence.

[4] Duty counsel could not act for the respondent at trial. However, the respondent was able to consult with duty counsel prior to the trial and duty counsel sat with the respondent during the trial in case he had any questions.

[5] The parties both had the assistance of a French interpreter. They both indicated that they only wanted to use the interpreter as they needed her and that they did not require simultaneous translation.

Part Two – Background facts

[6] The applicant is 45 years old. The respondent is 47 years old.

[7] The parties were married in Haiti on April 9, 2006.

[8] The parties arrived in Canada as refugee claimants in 2009.

[9] The parties have six children (the children). The children’s ages range from 7 to 16.

[10] The parties separated on August 5, 2020, after the respondent was criminally charged with two counts of assault, one count of sexual assault and two counts of assault with a weapon against the applicant.

[11] The respondent’s criminal release conditions prevented him from contacting or communicating with the applicant, or to come within 100 metres of any place he knew her to live, work, go to school and frequent. The release conditions provided that he could have parenting time with the children through a mutually agreed upon third party or pursuant to a family court order.

[12] The children have resided exclusively with the applicant since the parties separated.

[13] The applicant issued her application on August 14, 2020, seeking parenting and support orders and a restraining order.

[14] On October 16, 2020, on consent, Justice Carolyn Jones made a temporary order that the applicant have decision-making responsibility for the children. She also made a temporary order that the respondent refrain from harassing or annoying the applicant and refrain from contacting the applicant except through a third party agreeable to the parties or pursuant to a family court order.

[15] After being granted multiple filing extensions by Justice Jones, the respondent issued an Answer/Claim on May 16, 2021, seeking joint decision-making responsibility for the children and other parenting orders. He opposed the applicant’s request for a restraining order.

[16] On November 17, 2021, Justice Jones made a final order granting the applicant decision-making responsibility for the children and other incidents of parenting. She ordered that the respondent not discuss the applicant with the children and that he not speak negatively about the applicant or her family to the children.

[17] On June 23, 2022, on consent, Justice Jones made a final order that the respondent was to have supervised parenting time with the children at Access for Parents and Children in Ontario (APCO), every other weekend, for up to two hours. She also ordered that the respondent could have virtual parenting time with the children on alternate days for up to 30 minutes. The respondent was ordered not to discuss the applicant or speak negatively about her or her family to the children.

[18] On October 20, 2022, the Crown withdrew the criminal charges against the respondent when he entered into a peace bond for a term of one year. The peace bond provides that the respondent is not to contact or communicate with the applicant except with her prior written consent, which is orally revocable.

[19] On April 3, 2023, the parties resolved the support issues between them.

[20] On June 9, 2023, Justice Jones organized this focused hearing.

Part Three – The claim for a restraining order and family violence

3.1 Legal considerations

[21] The applicant’s request for a restraining order is made pursuant to section 46 of the FLA which 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.

[22] The legal principles for the court to apply in determining whether to grant a restraining order 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) Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365.

c) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

d) It is not sufficient to argue that there would be no harm in granting the order. See: Purewal v. Purewal, 2004 ONCJ 195.

e) Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra.

f) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.

g) The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. [1]

h) The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326.

i) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

j) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

k) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

l) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242; Jumale v. Mahamed, 2022 ONSC 566.

m) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., 2021 ONCJ 665.

n) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., supra.

o) A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

[23] Subsection 24 (4) of the Act sets out factors relating 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.

[24] Subsections 18 (1) and (2) of the Act define family violence as follows:

(1) “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)

“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

[25] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).

2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).

3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[26] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

[27] The court is very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

[28] Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

3.2 Positions of the parties

[29] The applicant seeks a final restraining order pursuant to section 46 of the FLA. She asks for an order that the respondent not contact her or come near her home, work or place of worship. She also asks for an order that the respondent not contact the children except in accordance with his parenting time set out in a Family Court order.

[30] The applicant deposed that she was the victim of significant domestic violence while she resided with the respondent. She claimed that the respondent was physically, sexually, emotionally and verbally abusive to her. She said that the physical and verbal abuse often took place in front of the children.

[31] The applicant claimed that the physical abuse took place monthly. She said that the respondent would slap her, push her and throw items at her. She described how the respondent threw a bag of garbage in her face in front of the children in 2020 and mocked her.

[32] The applicant stated that the respondent would call her abusive names daily and demean her in front of the children. She claimed that the respondent would threaten to harm her, threaten to have his friends harm her and threaten to send her back to Haiti.

[33] The applicant claimed that the respondent isolated her from family and friends, controlled her movements and prevented her from working.

[34] The applicant claims that the respondent has been meeting the two older children outside the terms of the final parenting order.

[35] The applicant testified that she lives in fear of the respondent. She feels that he hasn’t changed. She does not want to have any contact with him.

[36] The respondent claimed that “everything the applicant says are all lies” and that he has never, nor would he ever, mistreat or abuse her.

[37] The respondent deposed that he was a fully involved father and he wants to be able to contact the applicant in order to co-parent the children with her.

[38] The respondent told the court that the applicant is a weak parent and needs her help.

[39] The respondent claimed that the applicant was physically abusive to him during the relationship and called him demeaning names.

3.3 Was there family violence?

[40] There were limitations with the applicant’s evidence. Many of her allegations were generalized and she provided few specifics to support them – she provided no dates of incidents in her trial affidavit and only provided some more detail in her oral testimony. There was little documentation to support her allegations, such as medical or police reports.

[41] The applicant relied on child statements in support of her allegations that the respondent was breaching the family court order and making threats against her. However, this evidence was not reliable as she did not attribute the statements to specific children or set out any dates when the purported events or statements took place.

[42] The CAS records indicate that in April 2020 the applicant told the society that the respondent did not physically abuse her – contrary to what she maintained at this trial.

[43] However, notwithstanding these limitations, the court generally found the applicant to be a credible witness. The applicant was consistent and forthright in her testimony. The court believed that she has experienced abusive behaviour from the respondent and that she fears having contact with him.

[44] The CAS records filed by the applicant confirm that she was alleging in April 2020 that the respondent was controlling her, isolating her, verbally abusing her and undermining her with the children. The applicant told the worker that the respondent would turn off the internet in the home when he left for work so she could not use it. She described the respondent to the worker as constantly jealous and suspicious of her. These allegations did not arise when she started the court case, as alleged by the respondent.

[45] The court accepts the applicant’s evidence that the criminal charges were dropped because the respondent had recruited the two older children to testify and she did not want to put the children through this. She agreed to the respondent entering into a peace bond instead.

[46] The court also accepts the applicant’s evidence that because she was afraid of the respondent, she did not advise authorities about his physical abuse until she reported it to the police in August 2020.

[47] The court did not find the respondent to be a credible or reliable witness. He portrayed himself as a wonderful father who had done nothing wrong. However, there was evidence that convinced the court that he acted in a controlling and coercive manner with the applicant. Examples of this are:

a) The parties have a very disabled 14-year-old child who is in a wheelchair. They were provided with an accessible vehicle through a social service agency. The applicant needed this vehicle for the child when the parties separated. However, the respondent took the vehicle. This caused the applicant considerable distress, cost and inconvenience, as she had to arrange taxis to take the child to her many appointments with service providers. [2]

b) The court accepts the applicant’s evidence that at one point in 2020 the respondent withheld Child Tax Benefits from her and she asked the CAS worker to intervene on her behalf. The CAS records provided by the respondent indicate that the applicant informed the worker that after the worker had left the family home, the respondent had put the money back into the account and everything was good. In M.H.S. v. M.R., 2021 ONCJ 665, this court found this type of conduct to be a form of family violence. [3]

c) The respondent called the police and the CAS after the separation to complain about the applicant’s parenting. There was no merit to these complaints and they appear to have been an attempt to control her once she separated from him. The respondent said he made these calls because the applicant didn’t want to speak to him.

[48] The respondent acknowledged that on two occasions he went to the school to see the children. This was in contravention of the court order. [4]

[49] The court observed that the respondent quickly lost focus and verbally attacked the applicant’s counsel when she asked him questions at trial that he did not like. This was in a controlled setting. The court draws the inference that the respondent likely acted with similar aggression when challenged by the applicant in uncontrolled settings.

[50] The respondent demonstrated little insight into his behaviour. He felt that he could co-parent positively with the applicant. However, at trial, he spent time insulting her character and parenting ability. He called her a liar and weak. He could not grasp why she would not want to have contact with him. He claimed that she knows he loves her.

[51] The respondent also demonstrated a poor understanding of the purpose of this trial. He was seeking changes to his parenting time with the children when the trial was only about the claim for the restraining order.

[52] The court finds that the respondent perpetrated family violence against the applicant during their relationship. The court finds that the applicant has both a subjective and objective basis to fear the respondent and to not want contact with him.

3.4 Should a restraining order be made?

[53] The court has considered the respondent’s family violence towards the applicant in determining whether a restraining order should be made. The applicant fears the respondent and wants limitations placed on his contact with her. This is understandable and reasonable.

[54] These factors need to be balanced against the following factors:

a) The last incident of family violence was over three years ago.

b) The respondent has complied with the October 16, 2020 temporary order of Justice Jones, which refrained him from molesting, annoying or harassing the applicant or contacting her except through an agreed-upon third party or family court order.

c) The respondent has not attended at the family home for over three years.

d) The respondent did not breach the criminal release terms.

e) The respondent complied with the terms of the peace bond.

f) No allegations were made that the respondent has physically harmed the children.

g) The respondent is now attending regularly to see the children at APCO. [5]

h) A restraining order could adversely affect the respondent’s employment opportunities and immigration status.

[55] The court finds that there is a suitable alternative to making a restraining order to limit the respondent’s contact with the applicant and the children and to protect them – that is to make orders pursuant to section 28 of the Act.

Part Four – The alternative claim for orders under section 28 of the Act

4.1 Legal considerations

[56] 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 section 24 of the Act. The court has considered these factors, where relevant.

[57] 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.

[58] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child, including family violence.

[59] Section 28 of the Act sets out the different types of parenting orders that a court can make. Subsection 28 (1) reads as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[60] Subsection 33.1 (2) of the Act addresses the importance of the 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.

[61] 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 time 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.

4.2 Analysis

[62] The court finds that it is in the children’s best interests to order clear and strict terms relating to the respondent’s contact and communication with them and the applicant pursuant to section 28 of the Act for the following reasons:

a) The respondent perpetrated family violence against the applicant in the past.

b) The children were exposed to this family violence.

c) The respondent did not protect the children from family conflict.

d) Without placing strict conditions on contact and communication, it is inevitable that this conflict would start again. The respondent does not respect the applicant. He does not respect her parenting ability. It is not in the children’s best interests to be exposed to this conflict.

e) The respondent shows little insight into his conduct and its effect on the applicant and the children. He has acted manipulatively and coercively by calling the police and the CAS on the applicant, by taking the accessible vehicle for their child and withholding tax credits. He is unlikely to change.

f) Without placing strict conditions on contact and communication, the applicant’s sense of physical and emotional safety will be compromised. She already faces considerable challenges in parenting six children (one with significant special needs) alone, without adding to these challenges.

[63] It is in the children’s best interests to ensure that the respondent only communicate with the applicant regarding the children in accordance with a family court order or with her consent and that he only have parenting time with the children in accordance with the parenting terms contained in a family court order.

[64] The court will not include a term restraining the respondent from speaking negatively to the children about the applicant or her family, as this term is already contained in the June 23, 2022 final order of Justice Jones.

Part Five – Conclusion

[65] A final order shall go on the following terms pursuant to section 28 of the Act:

a) The respondent shall not communicate with or contact the applicant, except in accordance with any family court order or with her written consent.

b) The respondent shall not attend within 100 metres of the applicant’s home, place of work, place of worship or any other place he may reasonably expect her to be.

c) The respondent shall only communicate with and have contact with the children in accordance with the parenting time terms set out in a family court order. To be specific, he is not to attend at their schools, meet them in the community or arrange parenting time with them directly unless he obtains a new family court order permitting him to do so.

[66] The applicant’s claim for a restraining order is dismissed.

[67] It was apparent that the respondent wanted to change the terms of the existing parenting time order that he consented to on June 22, 2022. It may be that it should be changed – particularly regarding the two older children. However, there is a process to do this. The respondent must bring a motion to change before the court. He cannot act unilaterally and directly arrange parenting time with the children outside the terms of a court order. If he does so, there will likely be consequences.

[68] If either party seeks their costs, they shall serve and file their written submissions by September 25, 2023. The other party will then have until October 5, 2023 to serve and file their written response (not to make their own costs request). The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions are to be delivered to the trial coordinator’s office.

[69] Counsel for the applicant shall take out the order.

[70] The court thanks duty counsel, Peter Hutcheon for providing assistance to the respondent.

Released: September 13, 2023

Justice Stanley B. Sherr

[1] The court notes that there is jurisprudence the person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 ONSC 3600.

[2] The respondent deposed that he took the vehicle because the applicant did not have a driver’s licence. However, the applicant explained that she had a G1 licence and was able to drive with another driver in the car. She now has her G2 licence.

[3] This was also found to be a form of family violence in MacDonald v. Cannell, 2021 ONSC 7769.

[4] The applicant claims this has happened more than two times and this is likely the case.

[5] The applicant claimed that initially the respondent refused to attend at APCO.