COURT FILE NO.: FC-17-2417 DATE: 2018/10/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Obregon, Applicant -and- Samantha Montgomery, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: E. Gibson, for the Applicant S. Arlitt, for the Respondent

HEARD: August 15, 2018

Endorsement

Overview

[1] This is a motion brought by the Respondent mother for temporary sole custody, with no access to the Applicant and a Restraining Order.

[2] For reasons set out below, I grant the Respondent temporary sole custody of the child, with no access to the child, and a Restraining Order.

Factual Background

[3] On or about May 26, 2018, the Applicant and his girlfriend were arrested and charged with first-degree murder related to the death of a young adult woman in Toronto.

[4] On June 14, 2018, the Respondent served this motion on the Applicant’s counsel. The Respondent seeks an order granting her temporary sole custody of the child, now almost 5 years of age, with no access to the Applicant, and an Order that the Applicant be restrained from molesting, annoying, harassing or communicating directly or indirectly, with the Respondent, the child, her other child, and the maternal grandparents.

[5] The Applicant did not file a responding affidavit to this motion, although he was represented by counsel at the motion. It is believed that the Applicant is in custody awaiting trial, although the exact terms of his detention and his prospects of being released are not known.

[6] The parties were not married and cohabitated for a short period from 2012 to June of 2014, in Toronto. They have one child, Alexander-Justice Obregon Montgomery, born November 11, 2013 (“Alexander”).

[7] After the parties separated, the Respondent moved to Ottawa with Alexander in 2014, where she has continued to reside. It appears that the Applicant remained residing in the Toronto area. Alexander has been in his mother’s care since the separation, with very limited access to the Applicant. Except for one supervised access visit that took place at the end of April 2018 pursuant to Minutes of Settlement in this matter, Alexander has not had contact with the Applicant since approximately 2015. The Respondent’s evidence is that the child has little if any knowledge of the Applicant.

[8] The Respondent has another child with her new partner, who is now almost one year old.

[9] This Application was started by the Applicant on November 20, 2017 because he was seeking access to Alexander. His position in the Application is that the Respondent unilaterally moved from Toronto with the child in 2014 and has denied his many requests for access since that time.

[10] The Respondent’s evidence is that the Applicant was never an involved parent with Alexander prior to separation, and that he has an extensive history of criminal behaviours, including violent incidents. She raises concerns about the Applicant’s ability to care for the child and concerns about her own safety. In her Answer, the Respondent sought child support, sole custody of the child including the right to obtain a passport and travel with the child outside of Canada without the Applicant’s consent, and requiring that any access exercised by the Applicant be supervised.

[11] This matter was referred to the Office of the Children’s Lawyer for involvement by Order dated April 16, 2018. That office declined to become involved due to neither party providing their intake forms.

[12] The first court appearance in this Application date took place on January 22, 2018. It was adjourned on that date to a case conference on April 16, 2018. At the case conference, the parties agreed to Minutes of Settlement that provided for the Applicant to have supervised access to the child on the last Sunday of each month from 1 to 3 p.m. commencing April 29, 2018; and to pay temporary child support in the amount of $75 per month commencing May 1, 2018.

[13] The only visit occurred on April 29, 2018, supervised by the Respondent, who reported that the visit was not a positive one as the Applicant was upset and distracted from Alexander due to his view that such access was not fair.

[14] The second supervised access visit was to take place at the end of May, 2018. This access did not take place.

[15] On or about May 26, 2018, the Applicant and his girlfriend were arrested and charged with the fatal stabbing of a 21-year-old woman. The Applicant has not filed material contesting this version of events. It is believed that he is currently imprisoned, awaiting trial. There is also an indication that the Applicant may be facing additional criminal charges related to other violent events, but this is not confirmed.

[16] Given these events, the Respondent does not wish the Applicant to have the supervised access agreed to in the Minutes of Settlement. The Respondent also expresses her fear of the Applicant and his girlfriend, given the Applicant’s criminal history and recent events. In addition, the Respondent seeks leave to amend her Answer.

Analysis

Custody and Access

[17] Given the evidence of the Respondent which is not contradicted by the Applicant, and in particular the fact that Alexander has been in the sole de facto custody of the Respondent since a June of 2014, I find that it is in Alexander’s best interests to be in the temporary sole custody of the Respondent.

[18] Due to the limited relationship between the Applicant and Alexander, and the recent events concerning his arrest of which I am satisfied are relevant to the Applicant’s ability to act as a parent, I find that it is in Alexander’s best interests for there to be a temporary Order that the Applicant shall not have any access to Alexander, pending further Order or agreement between the parties.

[19] I also find that it is in the child’s best interest for the Respondent to be permitted to apply for a passport for Alexander, without the need of the Applicant’s consent, and to be permitted to travel with Alexander, including travel outside of Canada, also without the need of the Applicant’s consent.

[20] The above Orders are made under s.28 of the Children’s Law Reform Act (“CLRA”).

Restraining Order

[21] Under s.35(1) of the CLRA, the Court can order a temporary or final restraining order against any person if the Applicant has reasonable grounds to fear for her safety or for the safety of a child in her custody.

[22] Under s. 46(1) of the Family Law Act (“FLA”), the Court may make a temporary or final restraining order against the Applicant’s spouse or former spouse, or against a person with whom the Applicant is cohabiting or has cohabited for any length of time, if the Applicant has reasonable grounds to fear for her safety or for the safety of a child in her custody.

[23] The test under both statutes is to determine whether the moving party “has reasonable grounds to fear for his or her safety or for the safety of any child in his or her custody”: Wright v. Holmstrom, 2015 ONSC 1906, Fuda v. Fuda, 2011 ONSC 154, Khara v. McManus, 2007 ONCJ 223, D.F. v. D.C., 2018 ONSC 4481. The Courts must exercise caution when granting a restraining order due to the nature of restraining orders: limiting the freedom of movement and communication of a party and the risks of criminal sanctions if breached: C. (D.) v. C. (M.T.), 2015 ONCJ 242, at para. 64. The onus is upon the person requesting the restraining order, on a balance of probabilities, to persuade the court that it is required: C. (D.) v. C. (M.T.), ibid, at para. 64.

[24] The provisions of the CLRA and FLA do not appear to grant jurisdiction to make an order that restrains the Applicant from contact with the Respondent’s parents. While not deciding this point, I note that such an order may be made under the injunctive relief jurisdiction of the Court pursuant to s. 101 of the Courts of Justice Act, or under other court procedures such as the s.810 peace bond procedure under the Criminal Code, or conditions of release etc. There are also issues of the Respondent’s standing to seek such relief on behalf of her parents, who are not parties to this proceeding, nor is their evidence that they have received notice of this motion, or consented to the order being granted. I find that there is not a sufficient basis before me to grant an interim order restraining the Applicant from contact with the Respondent’s parents.

[25] Given the recent events, and the Applicant’s history with respect to violent incidents, as well as the fact that this is an interim order only, I find that the Applicant has established that she has a reasonable basis to fear for her safety, and the safety of the children in her care, such that an interim restraining order against the Applicant shall be granted, as detailed below.

[26] The Respondent seeks a 1 km radius in the restraining Order, which is excessive given that it is beyond the visual acuity of an ordinary human being. The Respondent argues that the Applicant has no basis for being in the Ottawa area, and therefore such a radius is warranted. I am not prepared to expand the radius beyond 100 metres without further evidence on this issue, which may be adduced at the final determination of this matter.

Amending Pleadings

[27] The Respondent seeks leave to amend her Answer. The Applicant has not raised any prejudice in her doing so. Accordingly, leave is granted for the Respondent to amend her Answer, as detailed below.

Orders

[28] I therefore make the following temporary orders:

a. The Respondent, Samantha Montgomery, shall have temporary sole custody of the child Alexander-Justice Obregon Montgomery, born November 14, 2013 (“Alexander”).

b. The Applicant shall not have any access to Alexander, pending further Order or agreement between the parties.

c. The Respondent shall be permitted to apply for a passport for Alexander, without the need for the Applicant’s consent, and shall be permitted to travel with Alexander, including travel outside of Canada, also without the need for the Applicant’s consent.

d. Pursuant to s.35(1) of the Children’s Law Reform Act, the Applicant shall be restrained from molesting, annoying, harassing, or communicating, either directly or indirectly, with the Respondent, except for communications with the Respondent’s lawyer of record or designated agent with respect to these legal proceedings, the child Alexander, and the child Faye Crawford Morris, born November 11, 2017.

e. Pursuant to s.35(1) of the Children’s Law Reform Act, the Applicant shall be restrained from attending with 100 metres of the Respondent’s place of residence, employment, either child’s school or daycare, or any other place the Respondent or the children are known to frequent.

f. Any police officers having jurisdiction shall be empowered to enforce this Order.

g. In the event that the Respondent no longer has a lawyer of record in these proceedings, the Respondent shall be required to designate an agent for the purpose of the Applicant’s communications with respect to these legal proceedings.

h. The Respondent shall have 30 days from the date of this Order to serve her Amended Answer. The Applicant shall have 60 days from receipt of the Amended Answer to file a Reply.

Costs

[29] If the parties are unable to agree on the issue of costs, the Respondent may serve and file submissions with respect to costs on or before November 12, 2018. The Applicant may serve and file submissions with respect to costs on or before January 10, 2019 (he may file these earlier if possible, but extended time is provided given the anticipated difficulties to the Applicant preparing his response while incarcerated). Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4.01(1) of the Rules of Civil Procedure.

Justice P. MacEachern Date: October 12, 2018

COURT FILE NO.: FC-17-2417 DATE: 2018/10/12 ONTARIO SUPERIOR COURT OF JUSTICE RE: David Obregon, Applicant -and- Samantha Montgomery, Respondent BEFORE: Justice P. MacEachern COUNSEL: E. Gibson, for the Applicant S. Arlitt, for the Respondent ENDORSEMENT Justice P. MacEachern Released: October 12, 2018