ONTARIO COURT OF JUSTICE

CITATION: Speers v. Foster, 2019 ONCJ 167

DATE: 2019 03 28

COURT FILE No.: Toronto D91264/16

BETWEEN:

TREENA LYNN SPEERS

Applicant (Mother)

— and —

MILFRED FOSTER

Respondent (Father)

Before Justice Robert J. Spence

Trial heard on February 15 and March 25, 2019

Reasons for Judgment released on March 28, 2019

Ms. Denise Badley………………………………………..counsel for the applicant

Mr. David Russell………………………………..………..counsel for the respondent

R. J. SPENCE J.:

1: Introduction

[1] This is the applicant mother’s (“mother”) application for a restraining order. She seeks an order that the respondent father (“father”) be restrained from molesting, harassing or annoying the mother and the mother’s 15-year-old daughter, J.[^1], and restrained from coming within 100 metres of the mother’s residence or anywhere else the father reasonably expects the mother or J. to be. The sole exception is for purpose of facilitating access between the father and the parties’ two natural children, Co. and Ca., respectively six and four years of age.

[2] The father is opposed to the granting of a restraining order.

[3] The father claims that while in the past he may have sent messages to the mother which he characterizes as “rude”, he denies that the messages were ever for any purpose other than to address access issues and that they were not such as to cause the mother to fear for her safety.

[4] For reasons that follow, I grant the mother’s request for a restraining order in favour of herself only, on terms which are set out in the final section of these reasons. I do not grant the restraining order in favour of J.

2: THE LAW

[5] Subsection 35(1) of the Children’s Law Reform Act provides [my emphasis]:

Restraining Order

35 (1) On application, the court may make an interim or final restraining order against any person 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. 15.

[6] It is not disputed that the mother’s daughter J., is in the mother’s lawful custody.

[7] Accordingly, the court is not prohibited from granting a restraining order in favour of both the mother and J., provided the mother satisfies the court on a balance of probabilities that she has “reasonable grounds to fear” for her safety or for the safety of J.

3: THE BASIS FOR THE MOTHER’S FEAR

3.1: BACKGROUND

[8] The parties were never married. They were in an on-again off-again relationship from about 2010 until their last separation occurred in July 2016.

[9] The mother lives on her own and has custody of the parties’ two young boys as well as her teenaged daughter, J., from another relationship.

[10] The father acknowledges that the parties’ history has been rife with conflict, frequently escalating to physical violence.

[11] The mother says that the father violently assaulted her in 2010 which led to the mother’s hospitalization.

[12] The father does not specifically deny this incident. Instead he says [my emphasis]:

At times the applicant would drink excessively and become hostile, belligerent and aggressive. As stated in the applicant’s affidavit, I have never been found guilty of any criminal offence and signed two peace bonds without admitting any guilt.

[13] The father also says:

During some arguments, the applicant scratched my face, bit my nose, spit in my face and head-butted me. All these incidents escalated from verbal arguments, and I did nothing to provoke these physical attacks against me.

[14] The mother absolutely denies ever initiating any physical conflicts. She says that on those occasions when she may have struck him, it was always done in the context of defending herself from the attacks by the father.

[15] In 2015 the mother went to a women’s shelter, where she remained for several months.

[16] Following an application commenced by the mother in this court location in 2016, the parties subsequently consented to final orders in 2017. By those final orders, mother was granted sole custody of Co. and Ca., with specified access to the father, as well as final child support and spousal support payable by the father to the mother.

[17] Both parties refer to incidents of conflict which occurred throughout their relationship. What is undoubted from these various incidents – regardless of who may have instigated any particular incident – is that domestic conflict was more or less widespread in their relationship.

[18] The foregoing is the backdrop which led to the mother’s application issued in this court on August 27, 2018.

3.2: THE TEXT MESSAGES

[19] Between the history encapsulated by those events and the commencement of the application, the father engaged in a barrage of text messages which he sent to the mother.

[20] Those messages, as shown to the court, and which the father acknowledged having sent, run from December 2017 until July 4, 2018.

[21] I intend to reproduce in this section of my reasons a number – but not nearly all – of those text messages to better understand the mother’s position, and why she alleges that she has a reasonable fear for her safety.

[22] The following texts, all sent by the father, are reproduced verbatim, including the times that he sent those messages[^2]:

(1) December 22, 2017 at 7:53 a.m. – The truth hurts, the most selfish person on this earth treena speers

(2) January 4, 2018 at 12:46 a.m. – I’m fighting for the boys with unbeatable determination and we will WIN and destroy you

(3) January 4, 2018 at 1:27 a.m. – You and drew[^3] will lose!

(4) January 9, 2018 at 4:46 p.m. – I can’t call you a cunt cuz a cunt is warm and deep!

(5) January 10, 2018 at 12:12 a.m. – Bar slut

(6) January 10, 2018 at 12:30 a.m. – Mark my words you and drew will be destroyed!

(7) February 21, 2018 at 11:23 p.m. – At least your female friends suck the balls, I’m in heaven!

(8) February 21, 2018 at 11:39 p.m. – Jen and fran have been good fucks

(9) February 25, 2018 at 9:36 p.m. – Tell Samantha[^4] if she’s single I like date her

(10) February 25, 2018 at 9:51 p.m. – You fuck drew and if I get the chance I want to snuggle with Samantha

(11) March 4, 2018 at 8:51 p.m. – Was I correct, drew is looking for younger and slimmer pussy?

(12) March 4, 2018 at 10:53 p.m. – You are fat, I want SAM

(13) March 7, 2018 at 10:27 p.m. – You must understand I will NEVER STOP until the boys are back with me, I don’t care about the money or courts cuz eventually the boys will live with me, cuz if boys run away from you the cops and courts can’t do nothing about it, you can’t STOP what people (the boys) want to do!

(14) March 7, 2018 at 10:27 p.m. – I am that pit bull!

(15) March 10, 2018 at 12:03 p.m.[^5] – You are the worst mother ever, Nancy taught you to be a BAD MOTHER and now your teach [J.][^6] to be a bad mother. YOUR UNFIT[^7] MOTHER!

(16) March 10, 2018 at 6:44 p.m. – You new name on my phone is ANTIMOTHER, look it up!

(17) March 10, 2018 at 7:37 p.m. – Gonna visit your mom’s grave[^8] and ask her why did she raise a bad mother, you and your sister!

(18) March 11, 2018 at 10:18 p.m. – In 6 years I’m bringing the boys home!

(19) March 24, 2018 at 5:39 p.m. – Guess your heart broken cause he[^9] will NEVER love you and he will always love his ex wife!

(20) March 24, 2018 at 6:01 p.m. – He must be desperate I’m fucking a 35 year old woman with nice body and a very pretty face!

(21) March 28, 2018 at 11:12 p.m. – When you walked out that door you became enemy #1, I can never forgive you for taking the boys away from me. “Revenge is a dish best served cold”.

(22) May 19, 2018 at 11:42 p.m. – Karma took your mother out and your next!

(23) May 23, 2018 at 10:42 p.m. – When the boys move in with me gonna stick it in your face every chance I have including when you’re on your death bed in a nursing home. I’m relentless, no court, cops or lawyers gonna stop me . . . .

(24) May 23, 2018 at 11:04 p.m. – If anything happens to the boys living or death you will have hell to pay

(25) June 20, 2018 at 10:39 p.m. – MARK MY WORDS I WILL DESTROY YOU DRUE [sic, Drew] AND SAMANTHA

(26) July 4, 2018 – Tell [J.] I’m gonna prove her wrong, along with the rest of your flying monkeys!

[23] The foregoing is a sample only – far fewer than half – of the text messages which the father sent to the mother between December 2017 and July 4, 2018.

[24] Of particular significance is not only the quantity of these messages which the father sent, but also their content, much of which can be taken as harassment and at least implied, if not overt, threatening.

[25] The harassing nature of these messages, given their content and their frequency, is exacerbated by the time of day that the father sent many of the messages to the mother.

[26] Of the 26 text messages which I set out as examples, 15 were sent by the father after 10:00 p.m., and many much later, and into the very early hours of the morning, times when it could reasonably be expected the mother would be settling down for the evening or asleep.

[27] The father claimed that while he did send these messages, they were shown to the court out of context and that the mother had edited the message exchanges between himself and the mother. However, the father provided no evidence to substantiate this bare assertion, and the mother herself absolutely denied having edited any of the conversations reflected in the above message exchanges.

[28] In addition to the above text messages which he sent to the mother, the father also engaged in some quite harassing and threatening messages with the mother’s partner.[^10]

3.3: THE IMPACT ON THE MOTHER

[29] The mother fairly acknowledges two things. First, she says that the father has sent no further text messages since the last message on July 4, 2018. However, she says the reason that the harassing messages ended then was because the police had cautioned the father to limit his text messages to matters relating only to pick-ups and drop-offs of the children.[^11]

[30] Second, the mother acknowledges that the father’s access, which occurs every Wednesday as well as alternate Saturdays and Sundays, has been occurring without incident at the mother’s house when the father attends for access exchanges.

[31] However, the court observed the mother closely during the course of trial. The mother exhibited signs of stress and anxiety during her testimony as well as during the father’s testimony.

[32] As she testified, the mother’s voice frequently broke and she had to try to control herself as she became teary-eyed.

[33] It was clear that as mother listened throughout the trial to the evidence of father’s behaviour, and his actions toward her, this had a very upsetting effect on her.[^12]

[34] The mother testified that the onslaught of messages from the father, at all hours of the day and night, made her feel like the father was “stalking”[^13] her.

[35] The feeling of being stalked was exacerbated by the father’s references to seeing the mother at various times and locations, including smoking outside of a particular bar, or walking home from the bar. These references by the father to seeing mother outside a particular bar were meant to imply that the mother was somehow an alcoholic or an abuser of alcohol, even though there was no credible evidence at all to support this suggestion.

[36] As a result of all of this, the mother testified that “my anxiety is high”.

4: THE FATHER’S RESPONSE TO THE MOTHER’S EXPRESSED FEARS

[37] The father claims the mother has mis-characterized his relationship with her. While he agrees that he had been “rude” to the mother in the messages he sent, he testified that those messages were from a different time in his life.

[38] He claims, “I’ve moved on in my life” and “I’m happy now”, statements which he made repeatedly – or words to the same effect – during his testimony.[^14]

[39] He says that the mother has been more “respectful to the boys” since he complained about the mother to the Children’s Aid Society. He acknowledges that nothing came of his complaint about the mother to the Society.[^15]

[40] He fails to explain at all why he would send messages to the mother with nasty/unkind words addressed to mother’s daughter, J.

[41] He attempted to explain that he sent one or more of the inappropriate messages to mother “out of frustration”. However, he did not really explain what caused him to feel frustrated.

[42] He did say in his testimony that much of the text messages he sent were in the context of arranging access, or issues pertaining to the parties’ two boys. However, a review of those messages reveals that almost none of the messages were about access issues or logistical issues pertaining to the boys.

[43] The father had previously been charged with assaulting his ex-wife. Mother agreed to act as his surety pending trial on that charge.

[44] While the mother was acting as surety, the father was then charged with assaulting the mother herself.

[45] As I noted earlier, both of those assault charges were resolved with father agreeing to a peace bond. As a condition of those peace bonds the father was required to take the PAR program.[^16] The purpose of this program is to teach participants how to control their anger and, more specifically, how to deal with high stress situations without inflicting physical assaults on their partners.

[46] The father says that the PAR program has effectively taught him to resolve disputes according to the principles he learned in that program.

[47] However, the father’s participation in PAR, pre-dated much of the history of conflict between the father and the mother. Certainly, it pre-dated all the harassing text messages which he sent to her. So whatever the father claims to have learned from PAR, the lessons clearly did not have a lasting effect.

[48] In his affidavit sworn January 28, 2019[^17], the father says, “there are no grounds for the Applicant to fear for her safety”.

[49] However, by the end of his cross-examination, he fairly acknowledged that the mother has been emotionally hurt by his actions.[^18]

5: THE CASE LAW

[50] As this court noted very recently,[^19] the general principles which a court will consider and apply when determining whether to grant a restraining order are neatly summarized in the case of D.C. v. M.T.C., 2015 ONCJ 242, a decision of Justice Victoria Starr, where she stated at paragraph 64 [my emphasis]:

Based on my review of the case law, the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one’s psychological safety;

(d) 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;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant;

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words and a Court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

[51] The father’s legal position relied on two cases. The case of R.K.K. v. J.L.M., 2007 ONCJ 223, was a decision of P.W. Dunn J. In that case, the applicant sought a permanent restraining order against her ex-husband.

[52] The parties had separated in 2000. The mother had been granted a temporary restraining order which expired in 2003. That temporary order had been made following threatening and harassing conduct by the father.

[53] However, following the expiry of that restraining order and until the parties then returned to court in 2007, the court found that there had not been a repeat of the kind of conduct which led to the granting of the temporary restraining order seven years earlier.

[54] Dunn J. noted at paragraph 33:

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.

[55] And then at paragraph 34 [my emphasis]:

If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant’s present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had 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 a respondent’s past harassment, and what an applicant perceives to be his or her present concern.

[56] In that case, there had been a passage of time of several years between the conduct complained of by the mother and the harassing conduct by the father. Having regard to that intervening period, which the court considered to be extensive, the court found no justification for granting a permanent restraining order.

[57] Dunn J. also found at paragraph 41 that the texts which the respondent had acknowledged sending where “unacceptably rude, but not antagonistic”. In the present case, a review of the text messages reveals not only that they were rude, but they were threatening and antagonistic as well.[^20]

[58] Father’s counsel also submitted for the court’s consideration the case of Smith v. Edwards, 2014 ONSC 859, a decision of D.A. Broad J.

[59] In that case, the respondent had been coming to the applicant’s property repeatedly, about nine or ten times from the date of separation until August 2011.

[60] However, on that last attendance, the police issued a warning to the respondent; and following that warning, the respondent remained away from the applicant’s property.

[61] The trial occurred in August 2013. At paragraph 34, the court stated [my emphasis]:

Although Ms. Smith expressed a heartfelt desire for a restraining order against Mr. Edwards to permit her to feel secure in her home, I am not satisfied on the evidence that there are sufficient objective facts support a finding that there exists a reasonable danger that Mr. Edwards will molest, annoy or harass her. There was no police involvement for two years prior to trial and no proof that Mr. Edwards has attended at the Rodney Street property other than to pick up Andrew during that period. The claim for a restraining order must therefore be dismissed.

[62] What is clear from both these cases is that the court will look closely at the intervening period between the end of the harassing acts and the date of trial to determine whether there is a sufficient basis for the applicant’s stated subjective fears.

[63] In R.K.K., supra, the court found that there had been no repeat of inappropriate behaviour by the respondent for at least four years.

[64] In Smith, supra, the court found that there had been no repeat of inappropriate behaviour by the respondent for two years.

[65] Case law, as well as common sense, suggest that the longer the gap of time between the offensive acts or words of the respondent, the easier it is for the court to conclude that a respondent’s past acts or words pose less of a future threat to an applicant.

[66] It is in that context that both of those cases are distinguishable on the facts of this case. Here, the father’s last harassing text message was in July 2018. The evidence portion of this trial was concluded in February 2019. On the evidence, a period of only seven months had elapsed from the date of the last text message, until the conclusion of the evidentiary portion of the trial.

[67] The father claimed that he had “moved on” in his life, that he is now a “happier” person than the individual who is reflected in the numerous text messages. While the father may be starting to move in that more positive direction, I am unable to conclude on the evidence that a real transformation has occurred, particularly given the relatively short period of time from the most recent text message in July 2018 up to the date of trial.

[68] In coming to this conclusion, I consider not only the messages and their timing in relation to this trial but also the history of the parties’ relationship and the violence which often suffused that relationship.

[69] In other words, the messages cannot be considered in a vacuum. Their words and their possible impact on the mother must be assessed contextually.

[70] While the father asserted that he had learned how better to deal with conflict which had led to police and criminal court involvement in the past, the evidence does not support that assertion.[^21] Bare comments such as “I’ve moved on in my life” or “I’m happier now” are just that, bare words. They do not in and of themselves establish that the father has in fact changed his attitude and, particularly, his attitude and approach toward the mother.

[71] In my view, on the facts of this case, a seven-month gap is far too short for the court to conclude that the father has reformed his ways. And it is that relatively brief gap of time which sets this case apart from the cases submitted by the father’s counsel.

[72] Instead, I find the principles in D.C, supra, to be more relevant on the facts of this case. Referring to those principles, I find on a balance of probabilities:

(1) The mother has a subjective and “ongoing fear for [her] psychological safety”;

(2) The mother has a “legitimate fear” based on the father’s “words of harassment”; and

(3) The mother’s fears are “related to [the father’s] words” and this court is “able to connect or associate [the father’s] words with [the mother’s] fears”.

[73] However, I am unable to conclude that the same kind of harassment, the same kind of intimidation and the same kind of persistent inappropriate messaging which the father sent to the mother, and in the context of the parties’ historical relationship with one another, pertained to J. as well.

[74] While the father was definitely rude and inappropriate in his references to this young teenaged girl, the messaging to her did not rise anywhere close to the type of messaging the father was sending to the mother.

[75] Nor is there evidence of a history of conflict between the father and J. of the kind that exists between the father and the mother.

[76] For those reasons, I am unable to conclude that the mother has reasonable grounds to fear for J.’s safety. Accordingly, a restraining order in respect of J. is not warranted.

6: CONCLUSION

[77] The mother’s claim for a restraining order in favour of J. is dismissed.

[78] On all the evidence, I find that mother’s case for a final restraining order in her favour is made out. The mother was seeking a final restraining order of indefinite duration. Notwithstanding the father’s highly toxic text messages, I am more inclined to limit the duration of the restraining order.

[79] I come to this conclusion because the father has been able to demonstrate restraint for the past several months, albeit likely because he was warned by the police to limit his communication with the mother.

[80] Accordingly, my order is as follows[^22]:

(1) The father shall be restrained from:

(a) Molesting, harassing or annoying the mother;

(b) Communicating in person, or by any electronic means, including text, email, or any social media with the mother, except for the sole purpose of dealing with access issues, or issues of immediate health and safety pertaining to the parties’ two children, Co. and Ca.; and

(c) Coming within 100 metres of the place of residence of the mother and anywhere else that the father reasonably expects the mother to be, except for access exchanges with Co. and Ca.

(2) This restraining order shall be effective for a period of three years from the date of this order, following which it shall automatically terminate unless extended by court order.

(3) Should the mother have reasonable grounds to believe that the restraining order ought to be extended beyond the three-year time period provided for in this judgment, she is at liberty to seek relief from the court by motion on notice to the father, not sooner than 12 months prior to the expiry of the three-year order.

(4) In the event the mother does move for an extension of the restraining order, the court’s determination will be based on a review of all the circumstances then in place, rather than whether there has been a material change in circumstances since the making of the within order.

(5) Under no circumstances shall the father be at liberty to seek a termination of this restraining order prior to the expiry of the three-year period.

[81] Should the mother seek her costs of this proceeding she shall hand-deliver her written submissions at the trial coordinator’s office no later than 21 days following the date of this judgment. The father shall have 14 days thereafter to file his responding submissions. No reply submissions will be permitted. Submissions by both parties shall not exceed three pages, exclusive of attachments including any Bill of Costs and authorities relied upon and shall be double-spaced and in 12-point font.

Released: March 28, 2019

Signed: Justice Robert J. Spence

[^1]: J. is the father’s step-child [^2]: Other than the time of message #26 [^3]: Mother’s partner [^4]: Mother’s friend [^5]: While father was attending at the mother’s house to pick up the boys for an access visit [^6]: Mother’s teenage daughter [^7]: Father claimed in his testimony that the reference to “unfit” was because mother was constantly “drunk” when he picked up the boys from her house or when he dropped them off. And yet, he had never previously raised this issue in prior affidavits or pleadings. [^8]: Mother’s “mom” passed away in or around 1999 and the father had never known or even met the mother’s mom prior to her passing. [^9]: Referring to Drew, mother’s partner [^10]: For the purposes of these reasons there is no need to reproduce those messages. [^11]: This is corroborated by a Police Occurrence Report dated July 7, 2018 in which the police officer specifically issued this caution to the father, the police officer noting that the father “understood and agreed to” the caution. [^12]: In other circumstances, and particularly where there might be issues of credibility, I might have placed little weight on the mother’s demeanour during the trial. However, given what the father himself said (which I will discuss later, concluding at paragraph 49 of these reasons), I find that the mother’s demeanour is consistent with the other evidence in this trial. [^13]: The father was also often driving by the mother’s place of employment. [^14]: He made these almost identical statements four or five times during his testimony. [^15]: His complaint revolved around the number of school days missed by the boys. It is noteworthy that he never complained about the mother’s excessive use of alcohol, something which he raised for the first time in this trial proceeding. [^16]: Partner Assault Response [^17]: The parties’ respective evidence in chief in the trial was by way of sworn affidavit, filed in advance of trial. [^18]: It was this acknowledgement that allowed the court to give credence to the stress the mother exhibited during the trial, as discussed earlier in these reasons. [^19]: Catholic Children’s Aid Society of Toronto v. I.A., 2019 ONCJ 49 [^20]: The characterization of text messages/communications will be something which is a matter of fact, to be determined by the trial/motions judge in each case, based not only on the communications themselves, but also having regard to the totality of the evidence in each case. [^21]: See my earlier comments about the timing of the father’s involvement in the PAR program in relation to the text messaging which became the subject of this proceeding. [^22]: The formal order with the names of the persons who are affected by the restraining order, as well as their birthdates shall be fully set out as required by the Restraining Order Endorsement Sheet. However, for purposes of these reasons and its likely publication, I continue to use initials for the children and I have not included the birthdates of either the parties or the children.