Court File and Parties

COURT FILE NO.: FS-19-95212 DATE: 2021 02 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JK, Applicant

Paula L. Bateman, for the Applicant/Mother

• and -

RK, Respondent

Catherine A. Haber, for the Respondent/Father

HEARD: January 28, 2021

REASONS ON MOTION

MANDHANE J.

OVERVIEW

[1] I must decide whether the Applicant/Mother, JK, has a legitimate basis to fear the Respondent/Father, RK, such that I should grant her an interim restraining order. In assessing RK’s conduct since separation, I consider the interplay between family violence and family law proceedings.

[2] JK says that she has reasonable grounds to fear for her safety and the safety of her children based on RK’s abuse during the marriage and past criminal convictions. JK also says that RK has continued to control and threaten her since separation by sending unwanted gifts, over-communicating, intimidating her at an access exchange, refusing to communicate through counsel, and purposefully obstructing her attempts at social independence.

[3] In response, RK brings a “cross-motion” for unsupervised access to the children and asks that I adjourn JK’s motion. He says that the marriage was not characterized by abuse, that the criminal convictions were isolated, and that “there has not been a single occasion since separation when I have done anything that could even remotely be characterized as threatening or inappropriate.”

[4] Given her safety concerns and the impending expiry of RK’s criminal probation order, it is in the interests of justice to determine JK’s motion expeditiously. I refused to adjourn it to be heard with RK’s cross-motion. JK abided by the Family Law Rules, O. Reg. 114/99 and confined her submissions to evidence properly before me. RK’s affidavit was substantively responsive to JK’s motion.

DISPOSITION

[5] I am willing to grant an interim order restraining RK’s communication, contact, and proximity to JK. His threat to her life and his controlling and threatening conduct since separation form a legitimate basis for JK’s subjective fear for her safety.

[6] I refuse, however, to grant JK’s motion for an interim restraining order against RK in relation to the children. There is no cogent evidence to suggest that RK presents an ongoing risk to the children, especially considering that his access is currently supervised.

FACTS

[7] JK and RK are married and have three children (ages 7, 5, 3).

[8] JK left the matrimonial home with the children on June 4, 2019. JK says that she left RK because he was physically, mentally and psychologically abusive. While RK denies this, in communications after separation, he wrote: “I can’t erase what we’ve been through – what I’ve put you through” and committed to “always try to make it up to you.”

[9] While temporarily living in a women’s shelter, JK complained to the Hamilton CAS and Peel Police. On June 5, 2019, RK was charged with:

a. three counts of assaulting JK between December 31, 2017 and June 2, 2019; b. one count of assaulting the eldest child on March 30, 2019; and c. one count threatening to cause death to JK on May 30, 2019.

[10] The police released RK on his own recognizance. He was prohibited from contacting, communicating with, or coming within 250 metres of JK or the children. Later that month, RK completed an anger management course.

[11] The CAS investigated and closed its file on August 20, 2019. There are no current protection concerns in relation to either parent.

[12] JK commenced these proceedings shortly after separation. Prior to their first case conference, RK would bring perishable food and gifts to JK’s counsel’s office, which required JK to attend promptly to pick them up. RK was eventually asked to stop. JK says that she interpreted RK’s gifts as “a mechanism of financial control” and a signal that he would not willingly pay adequate child support.

[13] Another time, RK “responded” to one of JK’s social media posts by sending a toy for one of the children to her home. JK “unfriended” him and the police warned RK not to mail gifts to her residence.

[14] At their first case conference on October 24, 2019, Kumaranayake J. ordered, on a temporary and without prejudice basis, that RK have supervised access to the children for two hours every three weeks. The parties were ordered to only communicate through “Our Family Wizard” (“Wizard”).

[15] RK’s criminal bail conditions were varied on December 19, 2019 to allow him to have supervised access with the children. The notes from Brayden Supervision show that RK’s visits have gone very well and that he is appropriately affectionate and diligent. All three children clearly love their father, are comfortable around him, look forward to spending time with him, and wish to see him more.

[16] In December 2019, RK asked for additional supervised access to the children over Christmas. JK denied his request but allowed the children to see their paternal uncle and grandfather, who brought gifts from RK for JK and the children. The Christmas gifts included teddy bears with voice-recordings of RK reading stories and singing songs.

[17] JK interpreted RK’s gifts as a deliberate breach of the non-communication order and called the police. The police confiscated the gifts and charged RK with failing to comply with his bail conditions. RK says that the gifts were innocent, that he obtained legal advice, and that he tried to warn JK (unsuccessfully) before sending them. The charges were eventually withdrawn, though RK’s bail conditions were varied to require him and his surety to each post an additional bond of $500.

[18] RK has been attending individual psychotherapy to address depression related to separation from his children and, in February 2020, his therapist noted that he was making good progress. On February 13, 2020, Tzimas J. ordered, on consent, that RK be allowed supervised access visits with the children on their birthdays in 2020.

[19] On February 27, 2020, RK pleaded guilty to assaulting his eldest child on March 30, 2019, and to threatening JK with death in May 2019. The three assault charges were withdrawn. RK explains that the assault against the child was “disciplinary" and did not result any injuries. He did not offer any explanation for threatening to kill JK.

[20] RK was sentenced to four months' house arrest, followed by two months' curfew, and additional six months' probation. His probation terms included that he:

a. not contact JK except through Wizard; b. not contact the children except through supervised access or electronic means; and c. attend and participate in programming suggested by his probation officer.

[21] RK’s probation order expires on February 27, 2021. To date, RK has never been found to have breached his probation terms or any other court orders. He has limited his communication with JK to Wizard and there is no evidence that he has threatened her on that platform or otherwise.

[22] However, JK says that the volume (some 400 pages) and tone of RK’s Wizard messages demonstrate his desire to communicate with her and control her under the guise of making access arrangements. From my review of the Wizard notes filed, it appears that RK was hoping to reconcile with JK immediately after separation and throughout 2019. However, after the events over Christmas, RK’s tone changes from pleading to desperate to hostile.

[23] In March 2020, when Brayden Supervision temporarily ceased operations due to the pandemic, RK reached out to JK via Wizard to suggest that his access take place in her garage with his father present. RK also suggested that the parties communicate by passing notes through the children. JK insisted that the parties abide by the court-ordered access arrangements, and RK was not able to see the children between March 1 and July 3, 2020.

[24] In a May 2020 communication in Wizard, RK told JK to communicate with him directly, rather than through counsel, for the purposes of obtaining his consent to remove her cellular phone number from their family account. RK goes on to state: “I do not like the tone your lawyer uses and would most likely not agree to your requests based on that alone.”

[25] Access exchanges have been relatively uneventful except for one incident on July 4, 2020. At the end of the visit at an outdoor park, RK left the parking lot; waited for the access supervisor to leave the parking lot; and then returned to the parking lot, exited his car, and waved to the children and JK. JK says that RK’s conduct was “a very clear signal to me from him that despite the court order he would do what he liked.” At his next access visit on July 25, three weeks later, RK asked the supervisor whether JK was “angry” about his conduct. JK eventually asked the supervisor not to leave the vicinity of the access location until she had left with the children.

[26] As of February 27, 2021, RK will no longer be bound by the criminal probation order, though he will remain bound by the interim, without prejudice, order of Justice Kumaranayake to only communicate with JK via Wizard, and the interim order of Justice Tzimas for supervised access.

[27] RK has yet to complete programming on family violence though he is currently enrolled in the Partner Assault Response (PARS) program.

ANALYSIS

The Law

[28] JK asks for an interim order restraining RK’s communication, contact and proximity to both herself and the children: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(6); Family Law Act, R.S.O. 1990, c. F.3., s. 46(1); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 35(1).

[29] To get a restraining order, JK must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579. The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376, at para. 23. However, a restraining order cannot be imposed lightly given the respondent’s liberty interest and the potential for imprisonment if the order is breached: Stave v. Chartrand, 2004 ONCJ 79, at para. 19.

[30] So, while the court must assess the applicant’s subjective fear, it must only grant the order where that fear has a “legitimate basis”: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (S.C.), at para. 31-32. While JK need not establish that RK has harassed or harmed her, I must be able to connect or associate RK’s actions or words with JK’s fears: Khara v. McManus, 2007 ONCJ 223, at para 33.

The parties’ positions

[31] JK points to the following facts as forming the legitimate basis for her fears:

a. That RK was convicted of threatening her life immediately prior to separation; b. That RK was convicted of assaulting their eldest child in 2019; c. That JK fled the matrimonial home with the children in 2019, stayed at women’s shelter, and never reconciled with RK or returned to the matrimonial home; d. That RK has not completed specific programing related to family violence; and e. That RK’s conduct since separation has been persistent, unwelcome and controlling.

[32] In response, RK relies on the following facts to argue that JK has no legitimate basis to fear for her safety or that of the children:

a. That RK has not been convicted of any other criminal conduct in relation to JK or the children; b. That RK has not been found in breach any court orders; c. That RK has completed an anger management course and individual therapy, and is enrolled in the PARS course; d. That there have been no protection concerns in relation to the children since August 2019; and e. That RK’s supervised access visits have been positive.

[33] RK says that JK’s request for a restraining order is motivated by her overarching desire to limit his access and alienate the children. Based on the teddy bear incident, he worries that JK will complain to the police about spurious breaches of any restraining order granted.

The social context of family violence in Canada

[34] I agree with JK that courts must be alive to the social context of family violence when assessing whether there is a “legitimate basis” for the applicant to fear the respondent.

[35] Over thirty years ago, in R. v. Lavalee, [1990] 1 SCR 852, Wilson J. recognized the cyclical and predictable nature of family violence. In accepting expert evidence about “battered women’s syndrome,” Wilson J. stated that: “Perhaps the single most important idea conveyed by expert testimony in such a case pertains to the notion that a battered woman, because of her extensive experience with her abuser's violence, can detect changes or signs of novelty in the pattern of normal violence that connote increased danger.”

[36] In her concurring reasons in Michel v. Graydon, 2020 SCC 24 at paras. 101-102, Justice Martin encouraged courts to consider women’s marginalization, intersectional identities and lived experiences when applying the “tests at issue” in family law proceedings. At para. 95, Martin J. wrote about the gendered nature of family violence and its impact on family law:

Women in relationships are more likely to suffer intimate partner violence than their male counterparts … As a result, they are more likely to leave their home and belongings—and their financial security—behind and to seek shelter or become homeless. A 2014 Statistics Canada analysis reported most women in shelters for abused women in Canada identified their abuser as a current or former partner; just over half of these were admitted with their children. The impact of unstable housing and the lack of legal or financial resources on a person’s ability to bring any kind of legal claim is evident. The impact of a history of violence on a person’s emotional health and their consequent potential fear, unwillingness to engage with their past abuser, or inability to do so are just as apparent. In addition to this, “some abusive fathers may use the child support process as a way to continue to exercise dominance and control over their ex-wives.” [citations omitted]

[37] Parliament has also recognized that courts need to be better informed and proactive in relation to family violence in parenting and access cases. Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, which amends the federal Divorce Act and comes into force next month, includes a definition for “family violence.” The definition covers a wide range of criminal and non-criminal conduct, including: physical, sexual, psychological, and/or financial abuse; as well as threats, harassment, and stalking: Canada, Bill C-78, 1st Sess., 42nd Leg., 2019, cl. 7(1) (assented to 21 June 2019).

[38] In the “Legislative Background” to the Bill C-78, the Department of Justice states that the amendments are responsive to real and persistent family violence in Canada, recognize the role that family violence plays in family breakdown, and its relevance to family law determinations of parenting and contact: Department of Justice, Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Bill (Bill C-78 in the 42nd Parliament) (28 August 2019), s. B.

[39] Finally, I note that courts must carefully guard against perpetrators using the family court process to maintain contact, domination and control over survivors.

Understanding and assessing RK’s conduct

[40] I accept that JK is subjectively afraid of RK in relation to both herself and the children. In determining whether there is a “legitimate basis” for JK’s fears, I consider RK’s conduct before and after separation within the broader social context of family violence.

[41] Despite pleading guilty to family violence-related offences nearly a year ago, RK has not completed any programming specifically aimed at understanding and addressing family violence. He continues to deny the seriousness of his actions and their impact on JK.

[42] That said, RK’s criminal convictions alone are insufficient to form a legitimate basis for JK’s subjective fears: Noriega v. Litke, 2020 ONSC 2970. While I accept that JK took RK’s threat seriously, that she was scared, and that it was the main factor prompting her to leave the relationship, I also note that the threat was made some 18 months ago, and that there have been no further criminal convictions since.

[43] On this motion, JK did not adduce sufficient evidence to support a finding that the marriage was characterized by ongoing and persistent abuse. While I refuse to draw any adverse inferences from the fact that she did not complain to the police prior to separation, I would have expected JK to adduce other evidence to support her claim. Such evidence could have included: health reports; counselling records; information from relatives, friends, professionals, co‑workers or other witnesses; personal records or photographs made contemporaneously with the alleged abuse; copies of electronic or other messages; et cetera. At its highest, the evidence before me suggests that there were incidents of abuse in the months prior to separation.

[44] That all being said, with an informed understanding of the social context of family violence, I find that RK’s conduct since separation, when coupled with his prior criminal convictions, forms a legitimate basis for JK’s subjective fears for her own safety. While the incidents discussed below may seem innocuous, I accept JK’s subjective interpretation of RK’s conduct as controlling and threatening.

[45] Since separation, RK has repeatedly been warned by JK’s counsel and the police not to interfere with her. Indeed, he has consistently interpreted the various orders restraining his orders technically and not in the spirit in which they were intended. This started with RK dropping off unwanted, perishable gifts at JK’s counsel’s office and expressing his intentions to “win her back.” It escalated to monitoring JK online and then making his surveillance known by sending her a toy that she had posted about on social media.

[46] Despite JK clearly stating that she wished to abide by court-ordered supervised access provisions, RK evaded supervision to wave to her after an access visit, wrote to her to suggest that visits take place in her garage, and mused that they could communicate through the children rather than Wizard.

[47] I am particularly troubled by RK’s decision to send the teddy bears with concealed voice recordings. With unlimited options at his disposal, RK chose to send gifts that would audibly signal his continued presence in JK’s private life. Before me, RK minimized the incident, calling it “innocent” and harmless.” However, his advance efforts to insulate his conduct from legal sanction show that RK made a calculated decision to engage in actions that he knew would be unwelcome and even disturbing to JK.

[48] I am also concerned that RK has tried to use these proceedings to intimidate and control JK. RK lavished the children with gifts, only to later claim an offset in child support payable to JK. RK threatened to withhold his “consent” to JK’s obtaining a private cellphone line based on her lawyer’s “tone” in correspondence. Rather than filing a response to this motion, RK moved for unsupervised access to the children and tried to have JK’s motion adjourned.

[49] In summary, I find that a temporary restraining order against RK would be a resource to protect JK for the duration of these family law proceedings: D.C. v. M.T.C., 2015 ONCJ 242, at para. 69. I find that RK’s criminal convictions, together with his conduct since separation form a legitimate basis for JK’s subjective fear for her own safety. I place significant weight on JK’s own perceptions of the events after separation as they relate to risk, and the fact that family law proceedings can trigger an escalation in controlling and violent behaviour.

[50] On the other hand, all the evidence suggests that RK has been a diligent, caring, and loving father since separation. I accept on the evidence before me that the criminal conviction related to an isolated incident and that the eldest child has maintained a strong and loving bond with RK throughout. Moreover, there is no reasonable basis for fear insofar as access visits between RK and JK remain supervised for the time being. I refuse to find that JK’s fear for the safety of her children is similarly legitimate.

ORDER

[51] For the duration of these family law proceedings, or until a court orders otherwise, RK shall not contact or communicate directly or indirectly, by any means whatsoever, with JK except through “Our Family Wizard” and pursuant to the terms of the temporary order of Kumaranayake J. dated October 24, 2019.

[52] RK shall limit his contact through “Our Family Wizard” to one message per week, unless otherwise necessary for the health and safety of the children. RK’s communications should relate only to the children. All other communications should be through counsel.

[53] RK shall not be within 250 metres of JK except for the purposes of access to the children, as set out in the temporary orders of Kumaranayake J. dated October 24, 2019 and Tzimas J. dated February 13, 2020.

[54] RK will not unreasonably withhold his consent where it is needed by JK to secure housing, credit, and/or any other aspects of social, financial and emotional independence.

[55] I refuse JK’s motion for a restraining order against RK in relation to the children. That said, she may bring back this portion of her motion before me without notice to RK if he engages in any conduct that causes JK to fear for the safety of one or more of the children.

[56] JK is entitled to costs on a partial indemnity basis. The parties shall endeavour to agree on the appropriate quantum of costs. If they are unable to do so, they shall serve and file their Bills of Cost, costs submissions not exceeding three (3) pages (double-spaced, 12-point font, 1.5” margins) and any relevant offers to settle by March 1, 2021.

Mandhane J. Released: February 12, 2021