Court File and Parties

COURT FILE NO.: FS-22-44841-0000 DATE: 2023-04-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.H., Applicant AND: M.T., Respondent

BEFORE: Conlan J.

COUNSEL: Evan Chang, for the Applicant John Cox and Alex Ogilvie, for the Respondent

HEARD: April 17, 2023

Endorsement

[1] Two motions were returnable today. The Applicant father, A.H., moves for unsupervised parenting time with the two children, five-year-old twins, from 10:00 a.m. to 5:00 p.m. every Saturday or Sunday. The Respondent mother, M.T., moves for an order that the father undergo a forensic psychiatric assessment, at his cost, and an order that the father have supervised parenting time from 8:00 a.m. to 12:00 noon every other Sunday at the premises of a professional supervised access provider, at his cost, and a restraining order.

[2] For oral reasons given today, due to non-compliance by the father with the time requirements for the service and the filing of his Confirmation Form for this long motion, and further his non-compliance with clause 6 of the Endorsement made by Mandhane J. on March 9, 2023, the father’s motion is adjourned to a date to be fixed by the trial office in consultation with both counsel. I am not seized of the matter, however, it would be preferable that I be the judge on the return date since I am familiar with the materials filed by both sides and heard one contested issue today. The hearing had previously been scheduled for two hours, but in my opinion that is insufficient time. I direct the trial office to schedule three hours instead, for the father’s motion and for the rest of the mother’s motion that was not heard today (that is, everything except for the mother’s request for a restraining order).

[3] Costs for today, both for the matters adjourned and for the mother’s request for the restraining order, are reserved to the return date of the two motions.

[4] The parties did agree today on some travel by the mother and the children. Order to go as per the Consent filed.

[5] The mother’s request for a restraining order is dismissed, for the following reasons.

[6] The mother’s pleaded basis for the said order is section 46 of the Family Law Act, R.S.O. c. F.3, as amended, which, at subsection (1), sets out the test for the order to be made – “reasonable grounds to fear for [the applicant’s] safety or for the safety of any child in [the applicant’s] lawful custody”.

[7] The evidence in support of the request comes from the mother, the mother’s hairstylist and friend, the maternal grandmother, and the mother’s brother. Every material allegation of assaultive, abusive, and/or threatening conduct on his part, towards the mother or towards a child, is vehemently denied by the father. The collateral affidavit material filed on behalf of the father, that being evidence from his live-in partner since November 2019, and his own father, and his mother’s sister, stands in stark and direct contradiction to the allegations made in support of the restraining order and the allegations made about the father’s alleged general disposition for violence.

[8] All of the affidavit material, on both sides, is untested. There have been no examinations out of court.

[9] In the factum filed on her behalf, at paragraph 87, the following submission is made by the mother, “[t]he test for a restraining order…appears to be both objective and subjective”. I agree with that submission. Justice Pierce stated exactly that in the decision of McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. The legislation itself also 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.

[10] During oral submissions by counsel today, this Court expressed some concern about the fact that the mother’s own evidence demonstrates that there is nothing that the father has done or said since April 2019, four years ago, that has contributed to the mother’s present fears and her rationale for requesting the restraining order. Further, the mother’s own evidence demonstrates that, after criminal charges against the father were withdrawn by the prosecution in favour of a peace bond, there were no issues of concern while the father was the subject of the peace bond, and no issues of concern since the peace bond expired about six months ago.

[11] It must be remembered that, in the context of deciding whether to amend or vacate an existing restraining order, the court may ask itself whether there is a “continuing need” for the order. McGowan, supra, at paragraph 38. “Continuing need”, in my view, means a present or a current need, and it makes no material difference to the currency criterion whether the court is dealing with a request for a restraining order at first instance, as here, or a request to vacate such an order, as in the case before Justice Pierce.

[12] In response to those questions from the Court, counsel for the mother, after the hearing was over but at the invitation of the Court, filed a supplementary statement of law.

[13] In that document, the decision of Justice Sachs in Jean Francois v. Jean Francois, 2011 ONSC 1970, is cited. At paragraph 93 of that decision, Justice Sachs states the following, “[g]iven the history of violence in this relationship the wife is entitled to an order that the husband is restrained from molesting, harassing or annoying her or the children”. With much respect, this is a rather futile effort on behalf of the mother to address this Court’s concern. In the case relied upon, the husband had been very recently convicted of two criminal charges in circumstances where, according to the wife, he stuck a gun in the face of his wife, in front of the children, and then forced the children to beg him to spare the life of their mother (paragraphs 1, 22, and 23). In our case, the father was neither convicted nor found guilty of any criminal offence. The criminal disposition was not very recent. And the father is accused of very serious things but nothing of the sort that confronted Justice Sachs.

[14] In that document, the decision of Justice G.P. Smith in Kemp v. Helfrich, is also cited. Again, with respect, that decision is not helpful to the mother. That case, unlike ours, was an uncontested trial. Further, in that case, unlike ours, there was very recent behaviour by the father that supported the request for the restraining order, including an incident just six months prior to the hearing date where the father berated the mother over the telephone and threatened to breach all existing and future court orders (paragraphs 1 and 8).

[15] Finally, in that document, the mother cites legislation and caselaw to the effect that there is no limitation period applicable in circumstances where a dependent person or a person in an intimate relationship is assaulted or abused by her partner. This Court agrees with that [see subsection 16(1) (h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, for example], and this Court is in no way suggesting that the mother’s request for the restraining order is somehow barred by a limitation period. That is not the point. The point is that the lack of any currency to the mother’s allegations is one factor for the Court to consider, one “obstacle” in the face of the mother’s request (as the Court put it during the hearing), in determining whether the mother has met her onus for this serious relief to be granted.

[16] The mother has not met that onus. These are very dated allegations, all untested, and all strenuously denied. There is cogent collateral evidence on both sides, and no way for this Court to reliably prefer one side’s evidence over the other. This Court is not satisfied on a balance of probabilities that the mother has reasonable grounds to fear for her safety or that of one of her children. The mother’s request for the restraining order is, therefore, dismissed.

[17] This Court understands the seriousness of family violence, and this Court does not criticize the mother or her counsel for bringing forth the request for the restraining order. At the same time, however, I do not share the view of counsel for the mother that the Court, in a borderline case, should simply resort to erring on the side of caution and grant the order requested. That ignores the test and the onus of proof. That also minimizes the seriousness of an interim restraining order being made in a family law proceeding. Such an order immediately impacts all future decisions in the proceeding, as they pertain to parenting matters. Such an order immediately lessens the prospect of shared parenting and joint decision-making responsibility, as those concepts are difficult to imagine in circumstances where one parent is restrained from having any contact or communication or being anywhere near the other, with limited exceptions. Such an order is appropriate where the evidence supports it, but we should be loathe to water-down the test in favour of simply being cautious. And we should be hesitant to make the order simply because there was a similar order in place before (the peace bond) that has now expired. Orders expire. This father knows that he cannot risk the slightest misstep if he stands any chance of being more than an eight-hour per month father under supervision. He must not forget that.

C. Conlan J. Date: April 17, 2023