Court File and Parties

COURT FILE NO.: 35/17 DATE: 2020/05/ 12 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Maria Cecilia Nunez Noriega, Applicant AND: Donald Harry Litke, Respondent

BEFORE: T. PRICE J.

COUNSEL: Applicant, Unrepresented Respondent Unrepresented

HEARD: May 7, 2020

Endorsement

THIS MOTION WAS HEARD BY TELECONFERENCE PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

Background

[1] This is a motion brought by the Applicant seeking “an urgent restraining order” against the Respondent.

Materials Filed on the Motion

[2] The Applicant filed an unsworn affidavit dated May 4, 2020. It was accompanied by a number of documents, none of which were referred to properly in the affidavit.

[3] The Respondent’s materials were sent to the court after the deadline set by the triage order of Justice Henderson. Notwithstanding, I elected to review them.

[4] They included an unsworn, undated affidavit which was also accompanied by a number of documents, none of which were referred to in his affidavit, and an affidavit sworn by the parties’ adult son.

[5] The Applicant filed an unsworn reply affidavit.

[6] At the outset of the hearing, I had each affirm the facts set out in the affidavit or affidavits that they filed.

The Applicant’s Materials and Case

[7] In her Notice of Motion, the Applicant lists a number of things allegedly done by the Respondent to support her claimed fear of him, including:

a. on one, undated, occasion, removing the Applicant’s kitchen window “to intrude into my place”;

b. demonstrating instability against the Applicant, her previous lawyer, and his own previous lawyer; and

c. “having a history of abuse, harassing and bullying for the past 18 years and he has continued this behaviour.”

[8] None of these allegations are set out in the Applicant’s affidavit. Their expression in a Notice of Motion is not evidence.

[9] In her affidavit, the Applicant makes the following allegations:

a. that the Respondent refused to pay over to the parties’ adult daughter funds which she had been saving for school since she was a child, thereby compelling the Applicant to “refinance [her] place” to help out the daughter;

b. in 2018, the Respondent sent “bully emails” to the Applicant’s former lawyer, whose services ended, apparently, because the Applicant “was not able to afford” the lawyer’s services any longer; and

c. in 2019, the Respondent’s former lawyer was removed from the record;

[10] The key allegation made by the Applicant in her affidavit is that, on Friday, February 28, 2020, the Applicant was working at home when, around 9:30 AM, the Respondent appeared at her door and rang the bell. The Respondent was observed by the Applicant to be moving her garbage can and recycling from her yard toward the door. The Respondent was alleged to be “moving the handle trying to open” the door, after which he “put a file with documents he filed in court”, while still trying to push the door and move the handle. He then left.

[11] The Applicant called police, who arrived after one hour. After questioning the Applicant, they provided her with an occurrence number, then left.

[12] The following information was provided by the Applicant in response to questions which I put to her.

[13] When asked about any advice the police may have given her, the Applicant responded that they told her that she should seek a peace bond.

[14] When asked if she acted on that advice, the Applicant responded that within one week she attended at the courthouse in London and met with a Justice of the Peace. She reported that she was informed by the Justice of the Peace that it would take too long for a peace bond to be obtained. She said that she was told that she should apply for a restraining order.

[15] When asked, the Applicant advised that she had no knowledge as to whether the Respondent had been to her property at any the time since February 28, 2020. She said that she has been home because of the Covid-19 pandemic, spending time with her family, which has given her some relief from her fear of the Respondent.

[16] Amongst the documents produced by the Applicant which were not referred to in her affidavit were some which, in my view, she ought not to have possessed. I refer specifically to the affidavit filed by the Respondent’s former solicitor in support of a motion to be removed from the record. That document is, implicitly, confidential since, pursuant to Family Law Rule 4(13), it is neither to be provided to an opposite party nor placed in the Continuing Record. When asked, the Applicant indicated that she received that document from the Respondent’s former solicitor. I am not relying on the information in that affidavit for this motion.

[17] The Applicant also produced what appears to be a record of a conditional discharge granted the Respondent on April 8, 2008. According to the document, the Respondent had been found guilty of criminally harassing the Applicant over a period of 3 days in October 2007, contrary to section 264(3) of the Criminal Code. His discharge was delayed for 12 months during which he was on probation, the key term relevant to this motion being that he “not associate or hold any communication directly or indirectly with” the Applicant. There were two exceptions: he could communicate with the Applicant through legal counsel and for the purpose of arranging access with the children.

[18] She also produced nine emails sent to her by the Respondent between October 5, 2007 and October 8, 2007. Based on their dates, it appears that they were the means by which the Respondent criminally harassed the Applicant. Suffice to say that the emails were unpleasant and disrespectful of the Applicant.

[19] The Applicant produced no evidence of any act directed at her by the Respondent between October 8, 2007 and February 28, 2020.

[20] Based on this evidence, the Applicant deposed that she is “extremely scared of the Respondent’s unstable behaviour” and afraid that he may try to hurt her, any member of her family, her pets, and her property.

The Respondent’s Case

[21] In his affidavit, the Respondent makes clear that his marriage to the Applicant was unhappy from the beginning. One can only conclude that, from his perspective, the relationship was extremely troubled.

[22] The parties are now embroiled in litigation over the Respondent’s request to terminate the payment of child support for their youngest child, who is 19 years of age.

[23] The matter was scheduled to proceed to trial on March 30, 2020, but the trial has been delayed because of the Covid-19-compelled suspension of in-person attendances at court.

[24] Against this background, the Respondent acknowledges attending at the Applicant’s property on February 28, 2020 for the purpose of serving her with the Trial Record. He understood that it must be served no less than 30 days before the trial date, and February 28 was the last date that he understood that he could serve the Applicant and still be in compliance with the Family Law Rules.

[25] He denied the balance of the Respondent’s allegations about what occurred on that date, although he did acknowledge ringing her doorbell, hoping to be able to serve her personally.

[26] Other than as necessary for purposes of completing the litigation, the Respondent indicated that he wants nothing to do with the Applicant.

The Applicant’s Reply

[27] The Applicant’s reply affidavit focused on alleged acts of violence perpetrated years ago by the Respondent against people in Peru, where the parties met, during the early months of their relationship, and his alleged manipulation or disregard of the children over the years.

Analysis

[28] The authority of the court to make a restraining order is set out in s. 46(1) of the Family Law Act, R.S.O. 1990, c F.3., which provides as follows:

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.

[29] In order to provide the court with grounds to make a restraining order, the Applicant must establish that she “has reasonable grounds to fear for … her own safety or for the safety of any child in his or her lawful custody.” (Bolding added)

[30] It can be seen from the outset that the Applicant’s request for a restraining order based on her claimed fear that the Respondent may hurt her pets and her property fails because neither are included amongst those potentially entitled to the protection of a restraining order in s. 46(1), nor about whom a restraining order may be made under s. 46(3).1, which provides as follows:

(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. (Bolding added)

[31] Similarly, because the parties’ children are now adults, none are in the custody of the Applicant. As a result, her request for a restraining order based on her claimed fear that the Respondent may hurt any member of her family also fails.

[32] That leaves only the Applicant, and the question of whether she has established that she “has reasonable grounds to fear for …her own safety.”

[33] To make that assessment, I must look at the evidence she had placed before me. In this case, although not properly referenced in her affidavit, I have also considered the documents which support the Respondent’s conviction for criminal harassment in April 2008.

[34] I next turn to the question of the perspective from which I must assess the Applicant’s “reasonable grounds to fear” for her safety.

[35] Must the Applicant’s “reasonable grounds to fear” be assessed objectively or subjectively?

[36] This issue was discussed by Justice J.P.L. McDermot in Fuda v. Fuda, 2011 ONSC 154, [2011] O.J. No. 138, in the following passage:

31 The test for whether a restraining order should be granted is, under both s. 46(1) of The Family Law Act and s. 35(1) of The Children's Law Reform Act is whether the moving party "has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody." This test was considered in Khara v. McManus, 2007 ONCJ 223, [2007] O.J. No. 1968, 2007 CarswellOnt (C.J.) which was a trial of an application for a restraining order. Justice P.W. Dunn stated, at para. 33 as follows:

When a court grants a restraining order in an applicant's favour, the respondent is restrained from molesting, harassing, or annoying the applicant. 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. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. 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.

[37] It therefore appears that there are both subjective and objective elements to the concept of “reasonable grounds to fear”.

[38] It may be that the Applicant’s claimed fear of the Respondent is, to her, real. If that, alone, was all that was required to satisfy the subjective element of the “reasonable grounds to fear” test set out in s.46(1) of the Family Law Act, the Applicant will have made that out.

[39] What use, then, can I make of the Applicant’s repeated bare assertions that she fears the Respondent? This type of conclusory statement, unsupported by specific evidence, was addressed by the Ontario Court of Appeal in R. v. DeBot, [1986] O.J. No. 994, a case about police obtaining a search warrant based on reasonable and probable grounds to believe that an accused was in possession of drugs, where Justice G.A. Martin wrote:

…a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. (Bolding added)

[40] I conclude that I cannot simply rely on the Applicant’s bare assertions of fear. More is required for the Applicant to establish, from a subjective perspective, “reasonable grounds to fear” for her safety.

[41] Justice F. Kristjanson considered the type of evidence required for an applicant to establish subjectively held “reasonable grounds to fear” for his or her safety in VMY v SHG, [2019] O.J. No 6702, 2019 ONSC 7279, writing:

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.

[42] The Applicant’s evidence lacks specific examples of a “lengthy period of harassment” by the Respondent, intended to distress her, or examples of “persistent conduct” by the Respondent which can be said to be “reasonably expected” to continue.

[43] Therefore, I find it to be questionable whether the Applicant has established that she subjectively has “reasonable grounds to fear” for her safety from the Respondent.

[44] However, for the purposes of this motion, I am prepared to accept on a prima facie basis, that she subjectively felt that she had reasonable grounds to fear for her safety from the Respondent.

[45] I next turn to whether the Applicant objectively had reasonable grounds to fear for her safety from the Respondent.

[46] Criminal law is full of examples where a court must assess objectively whether someone had reasonable grounds for some action taken or for some belief held.

[47] While this is not a criminal case, the consequences for the person against whom the restraining order is to be issued can include restrictions on movement and communication.

[48] In R. v. DeBot, supra, Justice Martin wrote:

On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged … The standard of "reasonable ground to believe" or "probable cause" is not to be equated with proof beyond a reasonable doubt or a prima facie case. The standard to be met is one of reasonable probability. (Bolding added)

[49] As I interpret what Justice Martin has written, when I am assessing the Applicant’s evidence from an objective perspective, I do so to determine whether I am satisfied that it establishes “reasonable grounds” for the fear claimed by her.

[50] Expressed differently, I must be satisfied that it is reasonably probable, based on that evidence, that the Applicant would fear for her safety from the Respondent.

[51] As I see it, the Applicant’s evidence sets out three primary events underscoring her claim of fear of the Respondent. They are the Respondent’s attendance at her property on February 28, 2020 to deliver the Trial Record, his conviction for criminal harassment 12 years ago for a series of emails sent over three days six months earlier, and his alleged use of violence against others in Peru some years before that.

[52] In my view, the criminal matter and the violence which allegedly occurred in Peru many years ago are far too dated, in the absence of other evidence suggesting the use or threatened use of violence in the interim, to be of assistance to the Applicant on this motion. I cannot reasonably and objectively conclude that those actions are connected, at this time, years later, to the Applicant’s claimed fears.

[53] While there is disagreement about what occurred on February 28, 2020 outside of the Applicant’s residence, at no time did the parties come into direct contact. The Respondent had a valid reason to attend at the Applicant’s residence since personal service is an option under the Family Law Rules.

[54] He disputes the allegation of pushing her garbage can or recycling toward her door. The police did not see fit to lay any charges against, or even warn, the Respondent for anything he either allegedly or admittedly did that day. A Justice of the Peace would not accept an Information for a peace bond based on the same facts.

[55] By my calculation, the Applicant was told by that Justice of the Peace on or around March 7, 2020 that she should seek a restraining order. Her Notice of Motion is dated May 4, 2020. She did not provide any explanation, although asked, for why it took between March 7 and May 4, 2020 – a period of almost two months - for her to seek the restraining order.

[56] In my view, if the Applicant was as fearful of the Respondent as she tried to have me believe, she would have moved more expeditiously to get the matter before the court.

[57] Based on all of the evidence before me on the motion, I am not satisfied that the Applicant has established “reasonable grounds” for any fear she claims to have of the Respondent.

[58] Consequently, I have no grounds to issue a restraining order against him.

[59] As a result, this motion is dismissed, without costs.

Justice T. Price Date: May 12, 2020