Coates v. Noble, 2015 ONSC 1105

COURT FILE NO.: F425/07-01

DATE: February 19, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: William Ernest Coates (Applicant)

AND:

Karen Jacqualene Noble (Respondent)

BEFORE: Justice B. W. Miller

COUNSEL: Jennifer Foster, for the Applicant

Karen Jacqualene Noble, self- represented

DATE HEARD: February 18, 2015

E N D O R S E M E N T

[1] The Respondent, Ms Noble, has brought a motion (1) for a restraining order against the Applicant, Mr Coates, and (2) for an order finding Mr. Coates in contempt of court.

[2] There is a lengthy history dating back to a Separation Agreement dated October 2, 2006, which was superseded by a Final Order of Campbell J. dated October 28, 2008. That order resolved issues of custody of and access to the parties’ child, Tyler William Coates (born May 10, 2003). On October 21, 2010, an order was made on consent to vary the amount of child support.

[3] A Motion to Change, which provides the backdrop for Ms Noble’s two motions, was brought by Mr Coates on August 28, 2014, seeking custody of Tyler and a termination of child support. Ms Noble filed a Response, in addition to her motion for contempt and a restraining order, on November 28, 2014.

[4] Each party alleges that the other has a propensity to violence. There are serious allegations from each party, and some conflicting affidavit evidence, about the involvement of the Children’s Aid Society and the London Police Service with each of the parties. At a Case Conference on January 6, 2015, Korpan J. issued an order requesting full release of disclosure from the Children’s Aid Society and the London Police Service. That disclosure has not yet been received. Justice Korpan also made an order for the appointment of the Office of the Children’s Lawyer. A response from the OCL has not yet been received. A settlement conference was ordered by Korpan J. for March 23, 2015, and the contempt motion was adjourned to today to be heard with the motion for a restraining order.

Order for Contempt

[5] The alleged contempt relates to Mr Coates maintaining custody of Tyler and refusing to provide access to Ms Noble, having changed Tyler`s school without Ms Noble’s knowledge or consent, failing to provide financial disclosure, and failing to pay child support.

[6] Mr Coates’ response, inter alia, is that with respect to the most serious accusation – of denying access to Ms Noble – he has done so to protect Tyler from a risk of harm.

[7] Mr Coates’ counsel argued that a contempt proceeding is not the best vehicle for dealing with the outstanding issues between the parties, and pointed to the ongoing Motion to Vary as preferable for addressing the ongoing dispute over custody and access. And, she argued, in any event, the nature of the evidence is such that it would be inappropriate to proceed on conflicting affidavit evidence. Additionally, the records that have been ordered from the CAS and London Police Service, as well as the report of the OCL, will allow a better assessment of Mr. Coates’ defence that his actions were required to protect Tyler.

[8] I indicated at the hearing that I am adjourning the contempt motion sine die. Hopefully, the underlying matters can be resolved in the Motion to Vary and it will be unnecessary to proceed with the contempt motion. But if Ms Noble wishes to proceed, she should only do so after receiving report from the OCL and after disclosure from the London Police Service and the CAS has been received.

[9] Because of the controverted nature of the affidavit evidence, the contempt motion is not suitable to be resolved without viva voce evidence.

[10] The contempt motion is adjourned sine die without prejudice to Ms Noble setting the matter down once the disclosure from the LPS and CAS has been made.

Restraining Order

[11] Ms Noble deposed in her affidavit that she is fearful of Mr Coates, and fears harassment from him, and states that he has in the past engaged in a pattern of domestic violence and of making false complaints to the police and the CAS regarding Ms Noble and others who have crossed him. She fears more complaints to the police as a reprisal for her bringing the current motions. She seeks a restraining order under s. 46 of the Family Law Act.

[12] Ms Noble deposed of an incident in April 2014, where Mr Coates is alleged to have orchestrated a scenario with Tyler culminating in a false complaint to the LPS of an assault on Tyler by Ms Noble, and an attendance by the LPS at Ms Noble’s residence. On Ms Noble’s account, the LPS eventually saw through the complaint, and then cautioned Ms Noble to execute a personal safety plan to protect herself against reprisals from Mr Coates. She accordingly changed her address, all contact details, and travels to work with a co-worker for safety.

[13] I accept that Ms Noble is deeply fearful of Mr Coates, both with respect to her physical safety and with respect to false accusations. Although the facts surrounding the April 2014 incident are disputed, Mr Coates admits in his affidavit sworn January 28, 2105 to having pleaded guilty to the assault of a former spouse in December 2010.

[14] It is a term of the 2008 order of Campbell J., at para. 20, that Mr Coates not attend at the Respondent’s place of residence or employment without the consent of the Respondent. Although Ms Noble characterized this as a ‘no contact’ order, it does not go that far. In any event, Mr Coates maintains that he has not attended at her residence or place of employment without her consent. Again, Ms Noble disputes this and I am unable to make a finding on the evidence before me.

[15] What is undisputed, however, is that Mr Coates has not had any communication with Ms Noble, other than through these proceedings, since April 2014. Again, the parties disagree on the reason for this. Ms Noble argues that this lack of contact and communication has only been because Mr Coates no longer knows where she lives and does not know how to contact her. Mr Coates disputes this and argues that he has simply respected direction from the LPS in April 2014 that he have no further contact with her.

[16] This is not a motion that is amenable to resolution on the basis of conflicting affidavits. The LPS and CAS productions would potentially have been useful to assessing the competing evidence.

[17] In any event, on the evidence that is not in dispute, it appears that a restraining order is not warranted at this time. The question of the form of communication between the parties will no doubt be addressed in the hearing of the Motion to Vary. No matter what the outcome of that Motion is, it will require some mechanism for communication between the parties. They are both parents of Tyler and this necessitates some minimal level of communication. In the interim, the restrictions on Mr Coates from the 2008 Order of Campbell J. remain in effect.

[18] Given the recent history, particularly that Mr Coates has not contacted Ms Noble since April 2014, there does not appear to be an urgent need for a restraining order. Ms Noble alleges that Mr Coates has been violent towards her in the past and that he has on many occasions showed up uninvited at her home and work, but she has not provided any details and Mr Coates denies the allegation.

[19] Ms Noble’s greatest concern, however, seems to with respect to Mr Coates making false accusations. It is, of course, a serious offence to make a false statement accusing a person of having committed an offence. A restraining order would not add anything to Mr Coates’ existing obligations under the Criminal Code not to commit such an offence.

[20] On such facts as I can find on this motion, there is insufficient evidence for a restraining order at this time. There is no evidence of recent problems, only Ms Noble`s concerns, which, given the contested nature of the evidence, are too speculative to ground a restraining order (Mercieca v. Mercieca, (2002), 2002 2754 (ON SC), 32 R.F.L. (5th) 392, paras. 26-27).

[21] This dismissal is without prejudice to Ms Nobel bringing a fresh motion should Mr Coates in the future engage in some form of harassing behaviour.

[22] I make no order as to costs.

“Justice B. W. Miller”

B. W. Miller J.

DATE: February 19, 2015