Woods v. Timko, 2024 ONSC 1150
CITATION: Woods v. Timko, 2024 ONSC 1150
DIVISIONAL COURT FILE NO.: DC-23-205
DATE: 2024/02/26
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, King, Doyle JJ.
BETWEEN:
JULIE BARBARA WOODS Applicant (Respondent in Appeal)
– and –
DARRYL ANDREW TIMKO Respondent (Appellant)
COUNSEL:
Lisa Allegro and Marlene VanderSpek, for the Applicant (Respondent in Appeal)
Michael Zalev and Rachel Hill, for the Respondent (Appellant)
HEARD at Hamilton: January 31, 2024,
REASONS FOR JUDGMENT
A. DOYLE J.
I. Introduction
[1] This is an appeal of the final restraining order granted against the appellant father, Darryl Timko, on a motion for temporary relief.
[2] The respondent mother, Julie Woods, brought a motion ex parte on an urgent basis after she was stabbed outside her home by the appellant’s father. Her motion requested a temporary without prejudice restraining order and a change of the father’s parenting time with the children while the police were investigating the matter. There were two initial appearances on this ex parte motion before Henderson and Bordin JJ.
[3] The motion was ultimately heard by Ramsay J. (‘the motion judge’) on June 7, 2023. Both parties were present and numerous affidavits were filed by the parties. The motion dealt with the issues of child and spousal support and the parenting issues.
[4] Despite the fact that there was no request for it and without giving the parties an opportunity to make submissions, the motion judge granted a final restraining order.
[5] For the reasons that follow, the court allows the appeal and sets aside the final restraining order. The interim restraining order of Henderson J. as amended by Bordin J. is reinstated.
II. Factual Background
[6] The parties were married on December 27, 2005. They have two children: a daughter born February 24, 2010, and a son born May 29, 2013. They separated on January 31, 2018.
[7] Following the separation, the parties had equal parenting time with the children, and they exercised a joint decision-making regime.
[8] In her application issued in September 2020, the mother requested joint custody (as it was called then) and an order that each parent have equal time with the children and, as well, other relief of a financial nature.
[9] In his answer, the father also requested joint custody and equal parenting time.
[10] The parties were scheduled to commence their family law trial on May 16, 2023.
[11] On May 13, 2023, without warning, the appellant’s father violently attacked the mother outside her home in Grimsby. She suffered serious injuries and required surgery. She was stabbed six times. One stab wound would have been fatal if the knife had penetrated an inch closer. But for the intervention of her partner and the neighbours, the injuries could have been substantially worse.
[12] This shocking and tragic event led the mother to bring an ex parte motion against the father for a restraining order and a change of his parenting time with the children.
[13] In support of her motion, the mother outlined her concerns that the father was involved in, or had some advance knowledge of, the attack on her. She also indicated that the case was under investigation by the police force.
[14] At the ex parte motion on May 15, 2023, Henderson J. ordered that, on a temporary basis, the children would have no contact with the father’s parents, the mother would have sole decision-making authority, the children would reside primarily with the mother, and any parenting time with the father would be supervised pending the investigation by the Niagara Regional Police. Henderson J. also ordered a temporary restraining order preventing the father from coming within 500 metres of the mother’s residence and within 200 metres of the mother. He ordered the mother to serve the father with the materials and scheduled the matter for the next morning.
[15] On May 16, 2023, Bordin J. amended the father’s parenting time so that he would have supervised parenting time with the children in blocks of two and four hours on weekends plus a 45-minute video call with the children on Tuesdays and Thursdays. The children were permitted to call him anytime. He also amended the temporary restraining order to permit the father to attend the children’s extracurricular activities if the mother was not in attendance and on condition that he not have contact with the children.
[16] A long motion was scheduled for June 7, 2023. In her factum and confirmation form for that motion, the mother confirmed that she was content that Bordin J.’s temporary restraining order continue. The father did not contest this position.
[17] At the return of the mother’s motion on June 7, 2023, the parties had filed 31 affidavits but no cross-examinations took place. The motion judge dealt with the issues of the father’s parenting time and child and spousal support.
[18] The motion judge also granted a final restraining order which provided that:
- The father shall not attend within 500 metres of the mother’s residence or within 200 metres of the mother;
- The father shall not have direct or indirect contact with the mother, but may engage in necessary communication about the litigation through the lawyers;
- The father shall not attend the children’s extracurricular activities or school; and
- The father shall not post on any chat group of which the mother is a member.
[19] The final restraining order expires on June 7, 2026.
[20] In granting the final restraining order, the motion judge noted that the father’s parents were closely aligned with the father. He found that, as a self-represented litigant, the father relied on his parents to assist in the trial preparation work and the parents would also care for the children.
[21] Notably, the motion judge found that the father had inspired the attack and that the:
“motive is obvious: the trial date was approaching, the Respondent was unrepresented, the trial record was late, the three-man team of the Respondent, his mother and his father were desperate. With the [mother] out of the way, the Respondent would have a clearer path to her money.”
[22] He ordered costs in favour of the mother in the amount of $8000. The father appeals this order as well.
III. Jurisdiction
[23] Under s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal is as of right to the Divisional Court from a final order of a judge of the Family Court made only under a provision of a provincial statute. In this case, the relevant provincial legislation is the Family Law Act, R.S.O. 1990, c. F.3.
IV. Standard of Review
[24] The issue of whether the motion judge overstepped his authority is a question of law. The standard of review for questions of law is correctness. There is also a question as to whether the motion judge breached procedural fairness in making the decision he did. Questions of procedural fairness are also reviewed on a standard of correctness.
V. Position of the Parties
[25] The father is appealing the final restraining order on the basis that the court had no jurisdiction or authority to make such an order. He submits the mother only requested a temporary restraining order and that both parties confirmed in the materials filed that they were content with the temporary restraining order in place at that time. In addition, the parties did not request a change in the terms, and neither party requested a final restraining order. This was not a motion for summary judgment where the court could finally dispose of the issues. The motion judge was wrong to add a term prohibiting the father from going to the children’s school and activities for the next three years, a term neither party requested.
[26] The father requests an order setting aside the final restraining order and, pending a further court order, the temporary restraining order of Henderson J. as amended by Bordin J. be reinstated.
[27] The mother argues that the motion judge had jurisdiction to make a final order under s. 46 of the Family Law Act and under its parens patriae jurisdiction. In her submission, the court is ultimately responsible to ensure that the children are protected, and their best interests are considered.
[28] In addition, she relies on r. 2 of the Family Law Rules, O. Reg. 114/99, which provides that the court must deal with cases justly and efficiently.
VI. Discussion
[29] I would allow the appeal on the basis that the motion judge erred in law by granting a final restraining order on a motion for temporary relief and which was not requested by either party.
[30] First, the purpose of a temporary order is to put things in a holding pattern until trial. It is meant “to simply provide a reasonably acceptable solution to a difficult problem until trial”: see Sypher v. Sypher (1986), 2 R.F.L. (3d) 413 (Ont. C.A.), at 413.
[31] The mother filed a form 14 under the Family Law Rules, which is clearly a request for a temporary order.
[32] Rule 14(1) of the Family Law Rules reads:
A person who wants any of the following may make a motion:
A temporary order for a claim made in an application.
Directions on how to carry on the case.
A change in a temporary order.
[33] In addition, r. 14(9) of the Family Law Rules indicates:
A motion, whether made with or without notice,
(a) requires a notice of motion (Form 14) and an affidavit (Form 14A); and
(b) may be supported by additional evidence.
[34] The mother, by filing a form 14, demonstrated an intention to request temporary relief pursuant to r. 14(9). It is of no consequence that she did not specify “temporary” with respect to a restraining order.
[35] In contrast, if the mother sought a final restraining order on a motion, she could have moved pursuant to r. 16 of the Family Law Rules requesting relief by way of a summary judgment.
[36] Rule 16(1) of the Family Law Rules reads:
After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
[37] Clearly, the tragic and unforeseen events required a motion to be brought on an urgent basis. A full summary judgment hearing was not the most effective way for the mother to receive protection for herself and the children because the court would need to determine whether there was a genuine issue requiring trial, as stated in r. 16(6).
[38] Second, a motion judge should not make a final order on an interim motion: see Pagnotta v. Makowski (2008), 54 R.F.L. (6th) 173 (Ont. Div. Ct.), at para. 4, and Schick v. Cardinal, 2019 ONSC 5694, at para. 39.
[39] Not only that, courts should not make orders that neither party requested: see Titova v. Titova, 2012 ONCA 864, 29 R.F.L. (7th) 267, at paras. 46-48, and Mudry v. Danisch, 2014 ONSC 4335, 48 R.F.L. (7th) 176 (Div. Ct.), at paras. 131-132.
[40] I do not agree with the mother’s position that the court has authority under s. 46 of the Family Law Act to make a final order on a motion for temporary relief.
[41] Section 46(1) of the Family Law Act reads:
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.
[42] In Titova, at para. 46, the Court of Appeal quoted from Rodaro v. Royal Bank (2002), 59 O.R. (3d) 75 (C.A.), at paras. 58-62, where the court stated that “[i]t is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings.”
[43] Here, there was no request before the motion judge to make a final order. Thus, he went beyond the boundaries of the pleadings in issuing a final restraining order.
[44] Third, the mother argues that the motion judge was bound by r. 2 of the Family Law Rules:
(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
[45] Admittedly, r. 2 of the Family Law Rules does provide the court with broad discretion to deal with cases justly.
[46] Nevertheless, in Rabin v. 2490918 Ontario Inc., 2023 ONCA 49, at para. 24, the Ontario Court of Appeal noted that:
It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.
[47] There may be circumstances in which unrequested orders are appropriately made. However, in the circumstances of this case, it was an error in law for the motion judge to make a final order in the absence of any evidence or submissions on these issues and in the absence of any explanatory reasons. This is especially so when both parties, both represented by experienced counsel had stated in their materials that they were content with the restraining order already in place.
[48] The court notes the principle from the Ontario Court of Appeal in Richardson v. Richardson, 2019 ONCA 983, at para. 26, that the court does not have to accept the position of the parties where it is not in the best interests of the children: see also Marshall v. Snow, 2022 ONSC 1687, at para. 101, and W.A.C. v. C.V.F., 2022 ONSC 2539, at para. 321. However, in making orders dealing with the children not asked for by the parties, the court should give the parties an opportunity to provide submissions.
[49] Last, the mother argues that the motion judge had authority to make a final restraining order under the court’s parens patriae jurisdiction.
[50] The parens patriae jurisdiction is not unfettered. As stated in A.C.B. v. R.B., 2010 ONCA 714, at para. 23, parens patriae is the power of the court to act in the stead of a parent for the protection of a child.
[51] In S.D.G. v. A.S., 2015 ONSC 752, McGee J. summarized the law in this area:
[51] The situations in which parens patriae has been exercised are not always consistent, but it is well settled that the jurisdiction is one of last resort, that it is to be used with caution, and only in accordance with its underlying principle: to do what is necessary for the protection of the person for whose benefit it is exercised and not for that of others.
[54] As the Court of Appeal indicated at para. 30 in A.C.B., supra, assessing whether parens patriae should be exercised is a “very fact specific exercise.” The modern view is that this exercise typically fits within one of the following traditional scenarios:
a. Where there is an unintentional legislative gap: see e.g. A.A. v. B.B., supra, at para. 27. This gap can be direct or indirect: see e.g. M.D. v. L.L., [2008] O.J. No. 907 (S.C.);
b. Where the child is in danger: see e.g. A.A. v. B.B., at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.);
c. In a judicial review of the exercise of statutory power by an administrative authority: see e.g. Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716; or
d. Where it is necessary to achieve the paramount objective of the applicable legislation: see e.g. A.A. v. B.B., at para. 40.
[55] In summary, the power of parens patriae authorizes a court through its inherent jurisdiction to intervene and rescue a child at risk. It can sometimes be used to bridge a legislative gap so that the underlying purposes of the legislation are met. It does not confer supplemental jurisdiction to rewrite legislation or procedure.
[52] Certainly, the best interests of the children were front and centre in this motion. The facts on this motion were horrific and required orders that would protect the mother and children, and that would limit the movements of the father pending trial or further order of this court.
[53] With respect, despite the egregious situation, the motion judge should not have made a final order on his own initiative.
[54] If the motion judge was intending to exercise his parens patriae jurisdiction in this case, then he should have considered giving the parties an opportunity to make submissions.
[55] Finally, the court should be cautious when making credibility findings or making final orders when there has been no cross-examination and there are competing affidavits.
VII. Conclusion
[56] For these reasons, the appeal is allowed. The decision of the motion judge granting a final restraining order is set aside and an order will go reinstating the temporary restraining order granted by Henderson J. as amended by Bordin J.
[57] As agreed by the parties, the issue of costs arising from the motion before the motion judge is reserved to the trial judge.
[58] The father is entitled to costs of this appeal fixed at $15,000 (all inclusive), which is a fair, reasonable and proportionate amount, given the complexities in this matter and in light of the fact that the mother was requesting $40,000 had she been successful.
_____________________ Doyle J.
I agree: ___________________________ Sachs J.
I agree: ___________________________ King J.
Date of Release: February 26, 2024
CITATION: Woods v. Timko, 2024 ONSC 1150
DIVISIONAL COURT FILE NO.: DC-23-205
DATE: 2024/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, King and Doyle JJ.
BETWEEN:
JULIE BARBARA WOODS
Applicant (Respondent in Appeal)
– and –
DARRYL ANDREW TIMKO
Respondent (Appellant)
REASONS FOR JUDGMENT
A. DOYLE J.
Date of Release: February 26, 2024