Court File and Parties

Court File No.: FO-11000023

Ontario Court of Justice

Between:

Megan Ouwehand and Lynn Ouwehand Applicants

— And —

Thomas Ouwehand and Diane Ouwehand Respondents

Before: Justice Peter T. Bishop

Heard on: May 28, 2012 and May 29, 2012

Reasons for Judgment released on: July 11, 2012

Counsel:

• Mark Van Walleghem, for the applicant(s)
• Sarah Trach, for the respondent(s)

BISHOP J.:

Application for Relief

[1] This matter comes before me by way of an Application for the following relief:

a) To restrain the Respondents from directly or indirectly contacting either of the Applicants or the child, Rachel Ouwehand; and that

b) The Respondents be restrained from coming within two hundred metres of the Applicants and the child, Rachel Ouwehand or their residences, school or place of employment;

c) The Respondents ask that the Application be dismissed with costs

Background

[2] Thomas John Ouwehand (the father) and Lynn Sharon Ouwehand (the mother) were married in Charlottetown, Prince Edward Island on October 12, 1991, separated in the winter of 2002 and divorced on June 9, 2006.

[3] There were two children of the marriage, Megan Lynne Joy Ouwehand, born […], 1992 and Rachel Katherine Dawn Ouwehand, born […], 1993.

Court Orders

Order of Justice E.W. Stach (December 10, 2003)

[4] Justice E.W. Stach of the Superior Court on December 10, 2003 granted the following relief:

a) That the parties shall have interim and permanent joint custody of the children of the marriage, Megan Lynne Joy Ouwehand born […], 1992 and Rachel Katherine Dawn Ouwehand born […], 1993 with the primary residence being with the Respondent (mother);

b) That the Respondent (mother) shall have sole custody of the children, Tyler Eric Crain MacDonald, born […], 1987

c) The Petitioner (father) shall have access to the two younger children as follows:

i) December 13th and 20th, 2003;

ii) One overnight visit on December 24, 25, 26th from 6:00 p.m. until 10:00 a.m. the following day;

iii) One week at the Christmas vacation to be determined between the parties commencing in 2004;

iv) Every second weekend from Friday at 6:00 p.m. until Sunday at 5:00 p.m. commencing January 9, 2004;

v) Two continuous weeks of the summer vacation;

vi) Any other times as the parties may agree.

d) That the Petitioner (father) shall pay child support in the amount of $635.00 per month to the Respondent (mother) for the children Megan Lynn Joy Ouwehand and Rachel Katherine Dawn Ouwehand commencing January 1, 2004 and continuing until the children are no longer considered dependant as defined under the Family Law Act.

e) That the Respondent (mother) shall have interim exclusive occupation of the matrimonial home until it is sold. The Respondent (mother) shall be responsible for paying the mortgage and all utilities associated with the matrimonial home commencing January 1, 2004.

f) That the Petitioner (father) shall pay interim spousal support to the Respondent in the amount of $450.00 per month commencing January 1, 2004.

g) That there shall be no order as to costs.

h) That unless the Support Order is withdrawn from the Director's Office, it shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office, P.O. Box 2204, Station P, Toronto, ON M5S 3E9.

i) That a Support Deduction Order shall issue.

Order of Justice E.W. Stach (May 9, 2006)

[5] By order of the Honourable Justice E.W. Stach of May 9, 2006 a divorce order was issued which contained the following terms:

a) That Thomas John Ouwehand and Lynne Sharon Ouwehand who were married at Charlottetown, Prince Edward Island on October 12, 1991 be divorced and that divorce takes effect thirty-one days after the date of this Order, June 9, 2006

b) That the Applicant (father) shall pay spousal support to the Respondent (mother) in the amount of $400.00 per month commencing February 1, 2006 up to and including October 1, 2011.

c) That the Applicant (father) shall pay the Respondent (mother) spousal support in the amount of $200.00 per month commencing November 1, 2011 and continuing thereafter until further Order of the Court.

d) That in the event that either party has a change of employment, that party shall notify the other party forthwith and provide to him or her documentation outlining rate of pay and hours worked. Spousal support shall be reviewed and adjusted accordingly.

e) That spousal support shall reduce to $200.00 per month on November 1, 2011, regardless of the medical condition of Respondent (mother). The parties acknowledge that Lynn Sharon Ouwehand has been diagnosed with multiple sclerosis and is making best efforts to become financially independent. Regardless of any medical condition or financial situation on November 1, 2011, spousal support shall be reduced to $200.00 per month.

f) That Lynn Sharon Ouwehand shall provide to Thomas John Ouwehand, on or before May 1st of each year, a summary of all job applications and efforts that she has made to find employment.

g) That both parties shall provide to the other party on or before May 1st of each year, a copy of his or her Income Tax Return for the proceeding income tax year.

h) There shall be no equalization payment owing from Lynn Sharon Ouwehand to Thomas John Ouwehand.

i) The parties shall contribute, proportionate to their incomes, to the reasonable post-secondary expenses of the children, Megan Lynn Joy Ouwehand and Rachel Kathryn Dawn Ouwehand. Megan Lynn Joy Ouwehand and Rachel Kathryn Dawn Ouwehand shall be expected to contribute to their education expenses to the best of their ability. Thomas John Ouwehand and Lynn Sharon Ouwehand shall contribute towards the children's post-secondary education to include one degree or diploma or four years of post-secondary education, whichever occurs first.

j) That Thomas John Ouwehand will continue to cover Lynn Sharon Ouwehand on his medical benefit plan through his employment as long as that plan is available to him.

k) That unless the Support Order is withdrawn from the Director's Office, it shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office, P.O. Box 2204, Station P, Toronto, ON M5S 3E9.

l) This Judgment bears interest at the rate of 5% per year effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

Order of Justice Warkentin (February 17, 2011)

[6] By Order of the Honourable Justice Warkentin dated February 17, 2011 the following relief was granted:

1. As of January 1, 2011, spousal support for Lynne Sharon Ouwehand shall be reduced to $1.00. If Lynne Sharon Ouwehand successfully completes the probationary period of her employment, spousal support shall be terminated on July 1, 2011. Should Lynne Sharon Ouwehand not complete the probationary period, the issue of spousal support may be revised.

2. Thomas John Ouwehand shall pay retroactive child support to Lynne Sharon Ouwehand in the total amount of $9,637.00 for the period of May, 2066 through January, 2011.

3. Thomas John Ouwehand shall receive a credit for overpayment of spousal support in the amount of $3,800.00, which shall be deducted from the retroactive child support owing.

4. The arrears of child support as reduced by the credit of overpayment of spousal support, amounts to $5,837.00, which shall be paid by Thomas John Ouwehand to Lynne Sharon Ouwehand at the rate of $250.00 per month commencing January 2, 2011.

5. For as long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with Section 24.1 of the Child Support Guidelines.

6. A Support Deduction Order shall issue.

7. Unless the Order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office and the amounts owing under the Order shall be paid to the Family Responsibility Office, who shall pay them to the person to whom they are owed. Payments are to be made to: Family Responsibility Office, P.O. Box 2204, Station 'P", Toronto, ON M5S 3E9.

Evidence of Lynn Sharon Ouwehand

[7] Ms. Ouwehand is forty five years of age. She told that violence during the marriage included the Respondent making her dress like a child and preventing her from going through small openings, touching her on the neck and tickling her one time until she urinated. She was also knocked unconscious once by a blow to the head.

[8] The parties moved to Kapaskasing, Ontario where the father hit Tyler, her child from a previous relationship with a fork. The father also put his hand over the mother's mouth during sexual situations and over the Tyler's mouth.

[9] She states that the parties moved to Kapaskasing and the police were involved many times. Tyler was hit and she was struck on one occasion and knocked out when hitting a coffee table. No authorities were called.

[10] The parties moved to Dryden. After separation the father entered the family home and took some belongings and he came to the house with his current partner when exercising access.

[11] There were allegations that the father and his current spouse would follow her and the children at various retail outlets in Dryden, Ontario, including Walmart, Extra Foods, Safeway and other shopping malls.

[12] The children have not had a visit with the father since 2007 as a result of an allegation of inappropriately touching Rachel. The Children's Aid Society has not verified that incident nor have any charges been laid. Ms. Ouwehand and Megan do not now trust the Children's Aid Society or the police.

[13] There were also allegations that the father approached Rachel at a piano recital and embarrassed her when wanting to have a picture taken and also at the Pinewood School recital in 2006. He requested the child Megan sit with him and he grabbed her arm. At the Grade 8 graduation Megan wanted to have class pictures taken and he would not let her leave until school staff interfered.

[14] The child Rachel, is diagnosed as high functioning autistic. She suffers from seizures and has developed night tremors. The sight of her father causes her body to tense and curl up.

Cross-Examination

[15] The mother admitted that they were both charged with assaulting her son, Tyler, and the charges were withdrawn against her and the father was granted an Absolute Discharge.

[16] She confirmed that the two girls, Megan and Rachel, had to be shielded from Tyler by the Respondent and it was a difficult situation.

[17] She acknowledges that there was no request for a restraining order in any of the previous court proceedings.

[18] She is of the view that the children are not comfortable in the father's presence and the father has no reason to have contact with the children.

[19] She alleges that the current spouse of the father has followed her and the children at Ella Lynn's department store and were in their presence at Safeway and Walmart.

[20] On one occasion in 2008, she was at the Warehouse One and Diane Ouwehand was there and she left as soon as she saw her.

[21] In 2007, Diane Ouwehand approached her, touched her arm and wanted to talk about the sexual touching allegation and she refused to speak to her.

[22] She stated that the Respondent forced her to switch her religion from the Church of the Nazarine to the Christian Reform Church.

[23] She confirmed that the allegations about hair pulling, inappropriate touching, assault on her son and her head being banged into a cupboard were all raised for the first time at this hearing. She was too scared to rock-the-boat if she reported anything as her former spouse told her that he had "friends in high places."

[24] Upon separation, the father paid the mortgage, child support, spousal support and at the time of entering the home to get his property, it was still jointly owned.

[25] She stated that both girls can decide whether they want to have any contact or access with their father. If it does not benefit them, there is no need for access.

[26] She has not given any information concerning either child to the father nor have any medical records been provided to him. She did not tell the father that Rachel was now in a wheelchair.

[27] She wants to receive financial support for the children but does not want to share any information about the children with him.

Mother's Allegations Relating to Diane Ouwehand

[28] Diane Ouwehand is the current spouse of the father. Lynne Ouwehand stated that Diane Ouwehand followed her at Ella Lynn's, a women's department store, in January, 2012. She does not want to be in Diane Ouwehand's presence. She did not call the police and there was no contact what so ever, other than the parties being in the same store at the same time.

[29] In 2011, she saw Diane Ouwehand close to her fiancé's place of employment. She did not call the police. In 2010 they were both at Safeway and Walmart and Diane Ouwehand followed her into Safeway. She heard Diane Ouwehand laughing and was afraid of her but did not call the police.

[30] In 2008 she was downtown at the Warehouse One store and Ms. Ouwehand stood and stared at her and she left the store as soon as she saw her.

[31] In 2007, after the allegations of inappropriate touching, Diane Ouwehand approached her, grabbed her by the arm at the Dollar Store and wanted to talk about that incident. She did not want to talk to her and did not call the police. There was no need to speak to her and she just walked away.

[32] On another occasion at the court house in Kenora, she heard Diane Ouwehand whisper "bitch" under her breath.

[33] In 2003 she confirmed there was no inappropriate touching but in her view inappropriate hugging which started when Rachel was six years old

Evidence of Tony Furtado

[34] Mr. Furtado is the fiancé of Lynne Ouwehand and is a self-employed accountant.

[35] He stated that when the father would come for visits the girls' belongings would be put outside on the porch and the father would insist on coming into the house and would put his foot in the door. At one time the father went downstairs to look at Rachel's pet rabbit. He thought that Mr. Ouwehand was trying to intimidate his fiancé.

[36] It was her view that the girls were frustrated and afraid of their father.

Evidence of Megan Lynne Joy Ouwehand

[37] Megan is the oldest daughter. At Rachel's recital her father came late and yelled at her and cursed her and grabbed her arm and Rachel cried because she saw how he was treating her. Her arm was grabbed for two to three minutes. It was a big scene and he stated "You little bitch. Why aren't you fucking sitting with me?"

[38] She stated that fifty to one hundred people would have heard her father swearing at her.

[39] While at Walmart her father came up behind the vehicle as it was parked in the handicapped spot. She stated that her mother always supported access if there it was a healthy relationship.

[40] There has been no contact with her father since December, 2011 when he called to her that her grandmother had passed away.

[41] She stated her father should know nothing about her.

[42] She has not provided her father or anyone with a copy of her work schedule and her father and spouse would not know when or where she is working. Even her mother does not have a copy of her work schedule.

[43] She stated that her father should do everything to not be in her presence.

[44] It was her decision at age sixteen not to have any further contact with her father and she has been engaged in counselling.

[45] When she turned eighteen, she directed the school not to send any transcripts to her father.

[46] She stated that she does not want Diane Ouwehand in her same space.

[47] In 2008, her father followed her to the high school and he drove by her house.

Evidence of Suzette Mary Rose Labelle

[48] Ms. Labelle is the front store manager at Dryden Shopper's Drugmart and Megan worked there for a period of time.

[49] She was aware that Megan had issues with her father and had permission to come to the back if she was scared. It happened approximately six times as Megan did not want to have any contact with her father.

[50] This witness did not see any interaction between Megan and her father.

Evidence of Thomas John Ouwehand

[51] Mr. Ouwehand is the father of Megan and Rachel.

[52] He described how difficult it was with Ms. Ouwehand's first child, Tyler as he tried to control him. He was charged with assault, convicted and granted an absolute discharge.

[53] He denies any physical violence towards the mother or his daughters.

[54] There were arguments, often heated and loud.

[55] After separation in May of 2003, he entered the former matrimonial home to pick up some personal belongings and some family heirlooms. Nothing was broken or strewn around and he attended on one occasion only.

[56] When exercising his access pursuant to Orders of Justice Stach of December 10, 2003 up until 2007, he fed and clothed the children appropriately and engaged in meaningful activities.

[57] His access stopped abruptly because of an allegation of inappropriate touching by Rachel. He was interviewed by the Dryden Police Service and charges were not laid. He denies any inappropriate touching and his former spouse never discussed the issue with him. Neither he nor his spouse has ever deliberately put themselves in the presence of the mother or the children and he did not follow the Applicants in any store from aisle to aisle. There may have been incidental contact while he and his spouse went about their daily routine in Dryden.

Reply Evidence

[58] Mr. Furtado said that Diane Ouwehand confronted him after the alleged photo incident at Suzanne's Boutique. He did not want to be in the middle of it and told her that if she didn't leave he would call the police.

Decision

Legal Test for Restraining Orders

[59] The authority to issue a restraining order is found in section 46 of the Family Law Act as follows:

(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

(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. S009, c.11, s.35.

Case Law Review

[60] I have reviewed and summarized the following cases submitted by counsel:

1. In Khara v. McManus, 2007 ONCJ 223, the test used to determine whether or not a restraining order was warranted was stated by Dunn J. as:

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 insults or possible harm without compelling facts. It can be fears of a personal or subjective nature, but they must be related to the 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.

If a Respondent has committed past acts or words of harassment they must have some current relationship with the Applicant's present fears. It may not be enough if the Respondent was violent to an Applicant in the past and the Applicant and Respondent had then an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an Applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between the Respondent's past harassment and while the Applicant receives to be his or her present concern.

2. In Mercieca v. Mercieca, the court rejected an Application for a restraining order on the basis that there was no objective factual basis for conclusion that there exists a reasonable danger that the respondent will molest, annoy or harass the Applicant.

3. In Fuda v. Fuda, 2011 ONSC 154, the court referred to the need for "compelling facts" leading to the applicant's fear.

4. In Edwards v. Tronick-Wehring, 2004 ONCJ 195, the court refused to grant a restraining order without such compelling or objective evidence where it was argued that there would be no harm in granting the order.

5. In Smith v. Smith, [2005] O.J. No. 5639, the Court stated that a restraining order will be made where a person has demonstrated a lengthy period of harassment, or irresponsible, impulsive behaviour with the objective of distressing a party.

6. In Purewal v. Purewal, 2004 ONCJ 195, the Court described the concept of harassing, annoying or molesting as requiring some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over a period of time.

7. C.S. v. M.S., 2010 ONCA 196, a decision of the Ontario Court of Appeal is distinguished entirely on the facts.

Application of Law to Facts

[67] In the case at bar, the Access Orders of Justice Stach continue however the father has decided not to exercise that access in accordance with the children's wishes.

[68] The mother's evidence is not accepted. Particularly in cross examination, she was evasive and took every opportunity to belittle and denigrate the father and could not give simple answers to very direct questions. She was instructed by the Court on more than one occasion to answer the question. On many occasions when asked to give dates and particulars she would reply: "I do not recall."

[69] There is no objective basis for her fear, as the claims of assault, abuse, and inappropriate touching have not been substantiated or verified by Child and Family Services nor by the police. The mother and Megan, do not accept that and do not trust the authorities who are charged with making those determinations.

[70] There is no temporal connection between the alleged abuse/assault and the evidence before the Court. The mother and adult daughter are bringing up allegations that happened during the marriage and to a lesser extent after the granting of the temporary order of Justice Stach, the final order of Justice Stach and the order of Justice Warkentin in 2003, 2006 and 2011. In reality, there is no objective evidence of assault, inappropriate touching during or since the divorce and no connection of any previous alleged conduct and present fear. Further, notwithstanding the mother's evidence that police were called in Prince Edward Island, Kapuskasing and Dryden, not one police report or witness has been presented to substantiate those past allegations. The court has not heard from Rachel Ouwehand and cannot access her credibility with respect to any alleged touching.

[71] The alleged abuse and assault did not cause sufficient fear at the time of the divorce or variation for the Applicants to seek a restraining order. As well, much of the evidence heard at this hearing was first disclosed to the father at trial.

[72] The claims of following or besetting do not result in any police investigation. In fact, neither the mother nor the adult daughter called the police with respect to any of these allegations.

[73] Megan Ouwehand's evidence is not accepted and she has no credibility. The court was concerned about her ability to give evidence in a fair and objective manner and inquired whether she was medicated on the trial day to which she replied "no"

[74] She repeated the evidence of her mother on many occasions that both she and her mother and Rachel support a healthy relationship with her father. The healthy relationship is entirely defined by the mother and the daughter. There is no objective basis for their position of not wanting to be in the presence of Mr. Ouwehand or Diane Ouwehand.

[75] Megan Ouwehand's evidence on the witness stand can only be described as hysterical and pathetic. She had the temerity to ask that her father be removed from the courtroom when she gave her evidence. She was totally unbelievable and her evidence has no air of reality. An illustration was her evidence that he father swore at her in the presence of fifty to one hundred people at Rachel's recital and yet the Applicants did not call one witness to corroborate that allegation. Mr. Furtado heard no swearing. The father filed family photos either at the recital or graduation showing happy smiling children in his presence to which Megan responded "I was faking."

[76] The Applicant and the parties' daughters, all have health issues. Rachel is high functioning autistic; Megan has muscular dystrophy, and the mother has multiple sclerosis. There is nothing to suggest that they are incapable or unable to give objective reasons for their position. Objectivity was totally lacking in their evidence. I can only describe Megan Ouwehand's evidence as a "performance" as after her evidence she sat with her mother and was calm, cool and collected. There is no objective or reasonable basis for either the mother or the daughter's fear.

[77] Dryden is a small community with a population of approximately 8,500 residents. There are major retail outlets and parties are entitled to shop at those businesses without fear of interaction, calling the police or being required to enter into a restraining order. Megan Ouwehand was most unrealistic and juvenile in her presentation as she couldn't stand to be in the presence of her father and that her father should have no information about her whatsoever and yet she wants his financial support to continue with her education. Both she and her mother have an inability to be reasonable and the responsibility for that unreasonableness rests with the mother who has had care and charge of the children for the last five years. I conclude that the mother has inculcated and instilled her views of the father on both of her children. This is very unfortunate and tragic as the father only learned about some of the children's difficulties concerning their medical situations at trial. The mother and her children have alienated their father who jointly gave them life and for the first thirteen to fifteen years was an equal caregiver. He expressed his love for them on the stand notwithstanding their rejection of him.

[78] I accept the father's evidence and his partner's evidence with respect to the allegations of following and besetting. The court can only conclude there was no deliberate following, no intention to harass but merely incidental contact going about their daily business as they are entitled to in Dryden.

[79] I accept Tony Furtado's evidence that Diane Ouwehand had contact with him at his place of employment when she thought that Lynne Ouwehand had taken an I-Phone picture of her. That doesn't change the test with respect to the granting of a restraining order. The granting of a restraining order is a serious matter and effectively notifies the world at large that the person bound is a potentially dangerous person as stated in Weber v. Weber, [2008] Carswell Ont. 9365 (S.C.J.).

[80] In conclusion, there is no objective evidence to substantiate the Applicant's fears and it would be prejudicial to the father and his spouse to be put in the position of granting a restraining order

[81] The past allegations of bad conduct occurring years ago and denied by the father are not sufficient cause to grant a restraining order.

[82] The court seriously questions the motive and bonafides of the Applicants. By analogy if this were a criminal proceeding the court would find that the Applicants are advancing a malicious prosecution.

[83] For all of the above reasons, the Application is dismissed.

Released: 11 July 2012

Signed: "Justice Peter T. Bishop"