COURT FILE AND PARTIES

COURT FILE NO.: FS-14-19860

DATE: 20150609

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carolyn Lawrence, Applicant

AND:

Matthew Bassett, Respondent

BEFORE: Kiteley J.

COUNSEL: Aaron Franks and Sheila Gibb, counsel for the Applicant

Respondent not represented on this attendance

HEARD: February 12, 2015

ENDORSEMENT

Background

[1] On December 11, 2014, the Applicant brought a motion on an ex parte basis to restrain the Respondent from disseminating information about her private intimate relations on the internet. The notice of motion sought that relief “pursuant to section 46 of the Family Law Act, R.S.O. 1990, c.F.3, as am., the Court’s inherent jurisdiction, and the common law”. I made a temporary order pursuant to s. 46 of the Family Law Act and I provided that the order ended on December 17, 2014 at noon unless continued before that date. I adjourned the motion to December 16, 2014 for service.

[2] On the return of the motion on December 16, 2014, counsel advised that the parties had negotiated Minutes of Settlement with respect to access and with respect to the continuation of the ex parte order. The Minutes of Settlement indicated as follows:

The Respondent Matthew Bassett shall be prohibited and restrained from communicating, disseminating, posting on the internet, distributing or publishing in any manner whatsoever (including in documents filed with the court), whether directly or indirectly, any statements, depictions, descriptions or commentary that reference by name or innuendo anything related to the Applicant’s Carolyn Lawrence personal intimate relations, pursuant to section 46 of the Family Law Act, R.S.O. 1990, c.F.3 as am. pending further Court Order. The Respondent shall be restrained from seeking a variation of this paragraph unless there is a specific trial date set for custody or parenting matters; at such time he may return the Applicant’s December 11, 2014 motion for it to be argued on its merits on 14 days’ notice to the Applicant.

[3] My endorsement on December 16 included the following:

I decline to make the order incorporating paragraph 1 as drafted. The second sentence is an ill-defined event. It would not be possible to determine when the trigger event occurred. That sentence will be deleted. However my overriding concern is whether the court has the jurisdiction to make the order pursuant to s. 46. I made a temporary order on a without notice basis. Now that the record is more fulsome, I am not confident that s. 46 can be relied on. Because the respondent has agreed to the continuation of the order I made December 11, 2014, I will incorporate it and continue it but not indefinitely. I will set a date for a hearing as to the jurisdiction.

[4] I scheduled the hearing to enable counsel to make submissions as to whether this court has jurisdiction under s. 46 (or otherwise) to make the order requested and I made the following order:

The Respondent Matthew Bassett shall be prohibited and restrained from communicating, disseminating, posting on the internet, distributing or publishing in any manner whatsoever (including in documents filed with the court), whether directly or indirectly, any statements, depictions, descriptions or commentary that reference by name or innuendo anything related to the Applicant’s Carolyn Lawrence personal intimate relations, pursuant to section 46 of the Family Law Act, R.S.O. 1990, c.F.3, as am. pending further Court Order.

Analysis

[5] As indicated, my concern was with respect to the jurisdiction to make orders such as that pursuant to s. 46, pursuant to the inherent jurisdiction of the court, and or pursuant to the common law. Counsel for the Applicant provided a factum and authorities and, on February 12, 2015 I heard oral submissions. Counsel for the Respondent did not attend nor make written submissions.

[6] In the Application issued on December 11, 2014, the Applicant seeks orders for custody and child support and an order with respect to access by the Respondent. Other than asserting a claim for child support, there are no financial claims. As of February 12, 2015 the Respondent has not yet filed an Answer. For purposes of this endorsement, I assume that the focus of the proceedings will be the best interests of the child.

[7] The Applicant launched the Application because of threats that the Respondent had made to publish certain information about the Applicant on the internet. The ex parte motion was brought to prevent the Respondent from carrying out his threat. After I made the ex parte order, the Respondent filed an affidavit in response to the motion in which he included reference to the information which he had threatened to put onto the internet. In my endorsement dated December 16, 2014 I ordered that the paragraph in question be redacted and that has been done.

A. Consent of the parties

[8] The issue before me is whether the court has jurisdiction to make the order requested. Counsel relies on three grounds. The first is that in the Minutes of Settlement the parties agreed to the continuation of the ex parte order and on that basis, it ought to be continued. Counsel relies on several decisions which stand for the proposition that agreements between spouses should be honoured by courts because spouses should be able to rely on settlements effected to organize future relationships and affairs.[^1]

[9] I agree with the proposition but I do not agree that it applies in this case. The settlements which have been the subject matter of such cases deal with substantive issues such as spousal support. They do not deal with cases in which the parties purport to grant jurisdiction to the court. The fact that the parties entered into Minutes of Settlement does not carry the day. The Court must be satisfied that it has jurisdiction to do that to which the parties have consented.

B. Section 46 of the Family Law Act

[10] The second ground on which counsel relies is that the court has jurisdiction pursuant to s. 46 of the Family Law Act which states 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.

(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.

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[11] In cases involving a motion for exclusive possession pursuant to s. 24(2)(f) where the requirement is for “violence”, the court has found that violence is not restricted to physical abuse but includes emotional harm.[^2] Violence has also included the content of text messages which were found to be threatening, intimidating and intended to be taken seriously.[^3]

[12] Pursuant to s. 46, the threshold for obtaining a restraining order is different, namely that 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”. In McCall v. Res[^4] Spence J. granted the Applicant’s request for a s. 46 restraining order after he reviewed prior cases[^5] from which he concluded that the fear must be reasonable; the fear may be entirely subjective so long as it is legitimate; and the fear may be equally for psychological safety, as well as for physical safety. I agree with his conclusions.

[13] In paragraphs 9 – 24 of her affidavit, the Applicant described the threats that the Respondent had made in emails, either through his counsel, or to the Applicant directly and her statement that his threats “are harassing and are an attempt to limit my ability to seek recourse from the Court”.

[14] In his affidavit sworn December 15, 2014, the Respondent deposed that it was not his intent to publicly disclose personal intimate information unless the Applicant complied with his access requests. He attached copies of emails which he said demonstrated that he had been pleading with the Applicant to be reasonable and civil. He did however take the position that if the Applicant’s allegations about his behaviour were relevant to parenting issues, then he too should be able to raise allegations relating to her behaviour. Having taken that position in his affidavit sworn December 15, 2014, he nonetheless authorized his counsel to sign Minutes of Settlement dated December 16, 2014 in which he consented to the restraining order sought.

[15] I agree with the observation made by McDermott J. in Fuda v Fuda[^6] as follows:

The strength of the evidence in support of the restraining order has to be considered in light of Callon v. Callon, [1999] O.J. No. 3108 (Ont. Div. Ct.) which was a motion for leave to appeal an order restraining a party from communicating to third parties about the moving party. The court considered the issue of an interim restraining order under s. 46 of the Family Law Act. In their brief reasons for judgment, the panel stated that the “purpose of Section 46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible.” In other words, the reason for a restraining order is to provide the litigants with some element of order in the context of difficult and acrimonious litigation. This is particularly important where there is a child involved as in the present case. Emphasis added

[16] I accept the evidence of the Applicant from which I infer that, based on the email communications described in her affidavit, she had reasonable grounds to fear that, if the order was not made, her psychological and emotional safety were at risk: his threats constituted a weapon to deter her from proceeding to court and jeopardized her right to seek recourse from the court. As indicated above, subjective fear is sufficient so long as it is legitimate. In this case, the fear raised is not entirely subjective but is corroborated by the content of emails. The restraining order is warranted to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible and to provide the litigants with some element of order in this difficult and acrimonious litigation. Indeed, I agree with counsel for the Applicant that, by agreeing to the Minutes of Settlement, the Respondent acknowledged that the restraining order was warranted.

[17] Counsel for the Applicant takes the position that the evidence of the Respondent’s past conduct is relevant to parenting while the past conduct evidence relied on by the Respondent is not relevant to the Applicant’s ability to act as a parent. On this motion, I need not decide whether the respective allegations of conduct that each party makes are relevant to parenting issues. It remains open to each of them to raise past conduct issues, subject to the overriding principles of relevance and admissibility. The order I make will affect the manner and the forum in which the Respondent makes such allegations, not whether they will be made.

[18] In addition, the Applicant appears to have de facto custody of the child, from which I also infer that she had reasonable grounds to fear that the psychological and emotional safety of the child were at risk. I agree with counsel for the Applicant that if the Respondent did disclose publicly the intimate details to which he has referred, the psychological safety of the child is jeopardized given the risk of this information leaving a digital footprint for years to come, of which the child may well become aware in the future.

C. Terms of the order

[19] As indicated above, s. 46 contemplates an order restraining a party from contacting or communicating with the other party or a child in that party’s lawful custody and an order restraining a party from coming within a specified distance of one or more locations. That is not what is sought here.

[20] S. 46(3)4. provides that the court order may contain “any other provision that the court considers appropriate”. I agree with counsel for the Applicant that the relief sought falls into this category. Courts must be responsive to the changing nature of conduct that gives rise to “reasonable grounds to fear for one’s safety” to include the evolving nature of the internet and the profound, pervasive and permanent impact such communications could have.

D. Common Law Injunction

[21] In his factum and submissions, counsel for the Applicant also sought a temporary injunction and relied on RJR Macdonald v. Canada[^7] for the proposition that the court should find that there was a serious issue to be tried; the Applicant would suffer irreparable harm if the application were refused; and the Applicant would suffer greater harm than the Respondent if the injunction is refused.

[22] In view of the conclusion I have reached with respect to s. 46 of the Family Law Act, I need not consider this submission.

E. Inherent jurisdiction

[23] Counsel for the Applicant raised this issue but did not expand on it either in his factum or oral submissions. I will not consider it.

ORDER TO GO AS FOLLOWS:

[24] The Respondent Matthew Bassett shall be prohibited and restrained from communicating, disseminating, posting on the internet, distributing or publishing in any manner whatsoever (including in documents filed with the court), whether directly or indirectly, any statements, depictions, descriptions or commentary that reference by name or innuendo anything related to the Applicant’s Carolyn Lawrence personal intimate relations, pursuant to section 46 of the Family Law Act, R.S.O. 1990, c.F.3, as am. pending further Court Order.

[25] There shall be no order as to costs with respect to December 11, 2014, December 16, 2014 and February 12, 2015.

Kiteley J.

Date: June 2015

[^1]: Farquar v. Farquar 1983 CarswellOnt 308 (C.A.); Petruzziello v. Albert 2014 ONCA 393
[^2]: Hill v. Hill (1987) 1987 8348 (ON SC), 10 R.F.L. (3d) 225 (Ont. Dist. Ct.)
[^3]: Menchella v. Menchella 2012 ONSC 6304
[^4]: 2013 ONCJ 254
[^5]: Fuda v. Fuda 2011 ONSC 154; Azimi v. Mirzaei 2010 CarswellOnt 4464 (Ont. S.C.J.)
[^6]: Footnote 5 at para 33
[^7]: 1994 117 (SCC), [1994] 1 S.C.R. 311