ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0065-01
DATE: 2013-04-19
B E T W E E N:
Tammi Lynn Dumonski,
Michael Cupello, for the Applicant
Applicant
- and -
Mitchell Shawn Dumonski,
Samantha Filipovic, for the Respondent
Respondent
HEARD: April 18, 2013,
in Thunder Bay, Ontario
McCartney J.
Decision On Motion
[1]
Background
Tammi Lynn Dumonski (“Tammi”) in this motion asks for an extension of a Restraining Order against her husband Mitchell Shawn Dumonski (“Mitchell”). This order was obtained on an ex parte basis from Justice Shaw on March 14, 2013. It was to expire on March 21, 2013 – but was extended to April 18, 2013. No formal application has been filed, and no dates have been set to have a full hearing of the matter.
2Since March 14, Tammi has lived in the family home at 328 Conyers Street in Thunder Bay with her three sons, Tyler born October 26, 1995, Baily born July 11, 1996, and Jarod born February 2, 1998.
3Just prior to this Restraining Order, Mitchell, on February 28, 2013, had applied to the court for an ex parte order for interim custody and exclusive possession of the matrimonial home on the basis that Tammi was threatening suicide, but this order was refused by Justice Fregeau. Prior to this, Mitchell had called the police as the result of other suicide threats by Tammi, and she was actually taken to the Lakehead Psychiatric Hospital by police on that occasion and was treated there for a short period of time. She did not return home for a week.
[4]
Positions of the Parties
In her Affidavit used in the ex parte application, Tammi indicated that Mitchell and she had been sleeping apart since December 20, 2012. She says they had been having marital trouble for three years and have been separated twice. She says when he is laid off in the winter he drinks too much. She says on December 31, 2012, he threatened to throw her through the front window. She did not take this seriously. She also said on March 1 he threatened to “rape her when she was sleeping” – a threat that she reported to the police. She says she needs some protection from him, but the police will not help her.
5Mitchell tells quite a different story. He believes this proceeding is all about getting him out of the house, since this is easier than trying to get an order for exclusive possession. He says this is the only home he has, except for a dilapidated trailer in Dorion, which is uninhabitable – having no running water (frozen pipes) and it is mouse infested. Since the date of the Restraining Order he has moved from place to place living with relatives and friends.
6Mitchell claims that Tammi has had mental problems since 1994, that she has had extra-marital affairs (at least one of which she admits in her Affidavit). He claims she has often left home and stayed for short periods of times at places such as the Faye Peterson House but until recently the parties have always been able to reconcile. Mitchell claims that up until March of 2013 on occasion they would still have consensual sexual relations and Tammi, in her affidavit, agrees with this. Furthermore, Mitchell claims he has never threatened to rape Tammi.
7Mitchell testifies that he has no criminal record, is a social drinker, and claims that Tammi has left him with the boys for short periods of time at least once a year since 2010 – and once for a 5 week period. He says that in the past, the only time the police have been called to their home was when he called them due to Tammi’s suicide threats.
8At the present time, in order to see his children, because of the Restraining Order Mitchell has to meet them at restaurants or other public establishments.
[9]
Analysis
Tammi has a very good full time job and apparently is quite mobile and able to leave her home and family as she has often done for brief periods of time. So, if she were truly afraid of her husband at any time since the relationship began 19 years ago, and since it began to deteriorate, she would seem to have had the ability to leave if she felt it necessary. In point of fact their marriage over the past several years has been quite unstable, but they have either reconciled or in one recent situation in 2012 they shared the house on an alternating weekly basis for several weeks. So from what I can see the threats that Tammi claims she fears, while they could certainly be considered verbal abuse, are quite easily handled by Tammi and highly unlikely to result in any violence, given the history of the marriage and the lack of violence to date.
[10]
Disposition
For all of the above reasons, I see no good reason to further extend the Restraining Order of Shaw J. of March 14, 2013, and so the motion herein is dismissed.
[11]
Costs
Under the circumstances no costs are ordered.
The Hon. Mr. Justice J. F. McCartney
Released: April 19, 2013
COURT FILE NO.: FS-12-0065-01
DATE: 2013-04-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tammi Lynn Dumonski
Applicant
- and –
Mitchell Shawn Dumonski
Respondent
DECISION ON MOTION
McCartney J.
Released: April 19, 2013
/mls