Court File and Parties

COURT FILE NO.: FC-22-109 DATE: 2024/04/16 SUPERIOR COURT OF JUSTICE-ONTARIO

RE: DONNA MARY WHIBBS, Applicant AND: DANIEL LEE DOBSON, Respondent

BEFORE: Gibson J.

COUNSEL: John David Ekpenyong, counsel for the Applicant Daniel Lee Dobson, Self-Represented Respondent

HEARD: February 7 and 8, 2024

Endorsement

Overview

[1] The Applicant Donna Mary Whibbs (“the Applicant”) and the Respondent Daniel Lee Dobson (“the Respondent”) have had a contentious relationship for several years. At one time the Respondent resided with the Applicant in a conjugal relationship at her home at 505 Fountain Street, Cambridge, Ontario. He did renovation work on the house for the Applicant. What happened subsequent to that is the major point of contention between the parties. The parties broke up and reunited several times over a four-year period from March 2018 to February 2022. The Respondent submits that he had become a tenant after 9 December 2021 when he moved back in, and was later improperly evicted from the property by the Applicant. The Applicant insists that they cohabited in a common-law relationship. Each contends the other has behaved badly, and each contends that the other has lied in court proceedings.

[2] The Respondent filed an application to the Landlord and Tenant Board tribunal claiming that he was a tenant. His application was dismissed. The LTB found on a balance of probabilities that the parties were cohabiting and involved in a romantic relationship that had gone from dating to cohabitation, and were not in a tenant relationship. The Respondent has appealed this finding to the Divisional Court.

[3] The Applicant now applies for a permanent restraining order against the Respondent pursuant to s.46(1) of the Family Law Act. The Respondent strenuously resists the application.

[4] Temporary restraining orders have previously been made against the Respondent in this matter by Justices Sloan, Walters and Bingham.

[5] I heard evidence in this matter on February 7 and 8, 2024. The parties made their final submissions in writing: the Applicant’s submissions were dated February 19, 2024; the Respondent’s final submissions were dated February 21, 2024; and the Applicant provided reply submissions dated February 28, 2024.

[6] Four witnesses gave evidence at the trial: the Applicant; her friend Kim Bogerink; another friend Mark Vanluven; and the Respondent.

Law

[7] Section 46 of the Family Law Act provides:

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. 2009, c. 11, s. 35.

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. 2009, c. 11, s. 35.

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. 2009, c. 11, s. 35.

[8] As was stated by Price J. at paras. 35-37 in Noriega v. Litke, 2020 ONSC 2970, there are both subjective and objective elements to the concept of “reasonable grounds to fear”:

[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”.

[9] Justice 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 ONSC 7279, writing at para. 46:

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.

Issues

[10] The issues before the court are:

1. Does the Applicant have legitimate and reasonable grounds to fear for her own safety; and,
2. Should a permanent restraining order issue against the Respondent?

Analysis

[11] The Applicant gave evidence on the hearing. I found her to be a generally credible witness, and I believe her account of what has transpired between the parties.

[12] The Respondent also gave evidence on the hearing. I did not find him to be a credible witness. He was frequently obfuscating and evasive in his answers to questions, and engaged in gratuitous ad hominem attacks on the Applicant’s counsel. I do not believe much of his account regarding the nature of the relationship between the parties, and what transpired between them. I also do not believe his account of the interactions between the parties during the crucial period of December 2021-April 2022.

[13] I make the following findings of fact based on the evidence that I do accept:

• Notwithstanding that they broke up and reunited several times, the parties lived together as common-law spouses in the Applicant’s home. They slept in the same bed for much of the relationship, had regular intimate relations, ate breakfast and dinner together at the same table, went to concerts together, travelled to the Bahamas twice for vacation together, and bought each other gifts for special occasions like birthdays and Christmas. Notwithstanding that the Applicant’s children were leery of the 22-year age difference between the older Applicant and the younger Respondent, the Applicant and Respondent also spent time with their respective families.
• The Respondent agreed to give the Applicant $750 per month when he moved back in again on 9 December 2021. This money was intended to be put towards increased household living expenses because he was once again living there. It was not properly characterized as rent. At no time did the Applicant ask the Respondent for a security deposit or first and last month’s rent.
• The parties continued in an intimate relationship during the months of January and February 2022, notwithstanding that Mr. Dobson slept in the basement suite because of his early rising hours due to his commute to Toronto for work, and his complaint that the Applicant snored.
• Mr. Dobson did not give Ms. Whibbs any money in March or April 2022. The relationship broke down. She asked him to leave, but he would not. She was subjected to yelling, screaming and swearing. She moved out on 8 March 2022 because of fears for her own safety. Mr. Dobson did not move out until 7 April 2022.
• During this period, Mr. Dobson urinated on the outside grounds of her property, and strewed trash outside. He sent her a threatening email stating “you have no idea what I am capable of.”
• The Respondent was not a tenant. The parties were cohabiting in a spousal relationship.
• The Respondent has breached the previous temporary restraining orders by personally serving her with documents, and by telephoning her.

[14] I find that the Applicant has legitimate and reasonable grounds to fear for her safety from the Respondent. This is manifest on both a subjective and objective basis. The Respondent has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing the Applicant. The conduct complained of has been persistent and there is a reasonable expectation that it will continue without court involvement.

[15] This court has jurisdiction to make a final restraining order in this instance pursuant to s.46(2)(b) of the Family Law Act because the Respondent is a person who “has cohabited with the applicant for any period of time”.

[16] The Application will be granted.

Order

[17] The court Orders that:

1. A restraining order shall issue on a final permanent basis under s.46 of the Family Law Act prohibiting the Respondent Daniel Lee Dobson, born May 28, 1984, from directly or indirectly contacting the Applicant, except through her counsel;
2. The Respondent shall not come within 500 meters of the Applicant, including her property located at 505 Fountain Street, Cambridge, Ontario, or any other location where she might reasonably be expected to be; and,
3. Approval of the form and content of this Order by the Respondent is dispensed with.

Costs

[18] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at Mona.Goodwin@ontario.ca, and also to Kitchener.SCJJA@ontario.ca. The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions and will decide on the basis of the material that I have received.

M. Gibson J. Date: April 16, 2024