COURT FILE NO.: FS-17-21499
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.M.
Applicant
(Respondent on Appeal)
– and –
L.S.R.
Respondent
(Appellant)
Andrew Sudano, for the Applicant (Respondent on Appeal)
Jessica Gagné, for the Respondent (Appellant)
HEARD: January 23, 2018
REASONS FOR JUDGMENT
KRISTJANSON J.:
[1] Mr. L.S.R. appeals from a final restraining order made by R. Spence J. dated March 16, 2017 pursuant to section 46 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) and section 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). The appellant father, Mr. L.S.R., and respondent mother, Ms M.M., separated in 2011 and have a 10 year old child.
[2] Ms M.M. was granted a restraining order preventing Mr. L.S.R. from attending within 500 metres of Ms M.M.'s home, work, church or college, as well as the school or daycare of Mr. L.S.R.'s daughter. The Motions Judge went on to grant relief not sought in the Notice of Motion, nor argued on the Motion, as follows:
The Respondent Father, L.S.R., has leave to bring a motion to review this order on the following terms: (a) not less than three years from now; (b) satisfactory documentary evidence that he has shown remorse and insight into his past conduct, and (c) evidence that he has engaged in therapy or counselling which provides an opinion that the Father is unlikely to engage in such conduct in the future.
[3] Both parties were represented by counsel before the Motions Judge.
[4] The matter proceeded by way of hearing on affidavit evidence, although the Motions Judge acknowledged that the affidavits of the parties were diametrically opposed regarding historical allegations of assault and violent behavior. The Motions Judge “believed” the mother’s allegations of incidents of abusive behaviour by the father in the period 2007 to 2012, and found that “the father’s bald denials should be disbelieved.” The Motions Judge in part relied on a report from the Office of the Children’s Lawyer, albeit four years old, but which incorporated: (a) a review of Toronto Police Service records of numerous complaints of assaultive and violent behavior by the respondent as well as the father’s former partner, (b) Children’s Aid Society consultations which he found verified the father’s abusive conduct, and that the child had witnessed such conduct, and (c) evidence of the father’s sister and the father’s paternal aunt of anger management and control issues.
[5] The most recent criminal charges against Mr. L.S.R. were two counts of assault, forcible confinement, sexual assault, threaten bodily harm, criminal harassment and failure to comply with a recognizance, all in relation to Ms M.M. in 2012. The mother did not appear to testify at trial, and the charges were dismissed. Mr. L.S.R. entered into a peace bond in March, 2016 for a twelve month period expiring March 15, 2017. On March 16, 2017, the parties argued the restraining order before the Motions Judge.
[6] The Motions Judge concluded on the evidence that the mother’s subjectively-held fears were reasonably based, and she was entitled to the protection of a restraining order. He held:
What is particularly disturbing about this case and which undoubtedly adds to mother’s fears is the fact that not only has father engaged in such conduct in the past, but today, he absolutely denies that any of this has happened. This demonstrates to the Court a complete lack of insight, lack of remorse, and, accordingly, a reason for mother to fear that this sort of conduct might arise in the future but for the imposition of a restraining order.
Issues
[7] There are three main issues in this appeal, in addition to the standard of review relevant to each ground of appeal:
(1) Did the Motions Judge err in law in issuing a restraining order where the addresses of prohibited locations (home, work, church and college) were not known to the subject of the restraining order?
(2) Where the issue of a knowledge requirement was not raised before the Motions Judge, can the issue be raised for the first time on appeal?
(3) Did the Motions Judge err in law or jurisdiction, or breach procedural fairness or natural justice, in holding that the subject of a restraining order cannot seek to review the order until he provides: (a) satisfactory documentary evidence that he has shown remorse and insight into his past conduct, and (b) evidence that he has engaged in therapy or counselling which provides an opinion that the subject is unlikely to engage in such conduct in the future?
Knowledge Requirement
[8] The restraining order prevents Mr. L.S.R. from attending within 500 metres of Ms M.M.’s home, work, church or college, as well as the school or daycare of his daughter. Mr. L.S.R. does not know the addresses of Ms M.M.’s home, work, church or college. In the original notice of appeal Mr. L.S.R. sought to obtain addresses so that he would know where he was prohibited from attending. On this appeal, however, Mr. L.S.R. argues that the order be amended to include a knowledge requirement to prevent unwitting violations, so that the order would be amended to read that he is prohibited from “knowingly coming within” 500 m of the unidentified locations.
[9] The parties agree that whether or not a restraining order, as a matter of law, must contain a knowledge requirement or contain enough information so that the person subject to the order is aware of prohibitions is a question of law, and the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at 8.
Enforcement of Family Law Restraining Orders
[10] On its face, the restraining order states that:
This order will be registered against the person being restrained on the Canadian Police Information Centre (CPIC) Database. Disobeying this order is a criminal offence punishable by fine or imprisonment. Any police or peace officer with jurisdiction over the place where the order was disobeyed may arrest the person being restrained without a warrant in accordance with section 495 of the Criminal Code of Canada.
[11] The offence for breach of a family law restraining order is found in section 127(1) of the Criminal Code under the heading “Disobeying order of court”:
127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[12] The punishment for breaching a family law restraining order if the Crown proceeds by way of indictable offence under section 127(1) is up to two years of imprisonment. If the Crown elects to proceed by way of summary conviction, the maximum penalty is a term of imprisonment not exceeding six months, and/or a fine of not more than $5,000, pursuant to section 787(1) of the Criminal Code.
[13] Of note, in 2014 both section 35 of the CLRA and section 49 of the FLA were amended to exempt the restraining order provisions from the Provincial Offences Act scheme for “wilful contempt of or resistance to” orders under the FLA and CLRA. Orders other than those issued under section 35 CLRA and section 49 FLA may be enforced pursuant to the Provincial Offences Act scheme. Under the Provincial Offences Act, the maximum fine is $5,000 and the period of imprisonment of 90 days. Therefore, the legislature has specifically adopted a more significant penalty for breaches of restraining orders than for other breaches of family court orders.
[14] A breach of the restraining order could also be sanctioned by a civil court on a contempt motion brought pursuant to Rule 31 of the Family Law Rules, which provides that a person in contempt may, amongst other remedies, be imprisoned or ordered to pay a fine or penalty.
[15] Finally, a person in whose favour the restraining order is made could bring a motion for relief under Rule 1(8) of the Family Law Rules, which provides the court with a broad discretion to strike pleadings and documents or order that a party is not entitled to any further relief until a further order of the court.
Argument re Knowledge Requirement
[16] Given the seriousness of a breach of a restraining order, the appellant argues that the terms of an order which may result in imprisonment for criminal offence must be free from ambiguity, vagueness or uncertainty, so that those governed by the restraining order know with precision what actions are forbidden by the order. The appellant analogizes to injunctions which may be prosecuted for criminal contempt of court: Oak Bay Marina Ltd. v. Council of the Haida Nation, 1995 CanLII 1464 (BCCA) at para. 12. For this reason, the appellant argues that a restraining order which may result in imprisonment should leave no doubt or ambiguity about what can and cannot be done: Aquilini v. Aquilini, 2013 BCSC 217 at para. 27. The appellant argues that the order should be amended to ensure the prohibition applies only where the appellant “knowingly” comes within 500 metres of the unidentified locations.
[17] Ms M.M. argues that it is not a requirement of the FLA that an address or place be specified, although her counsel does acknowledge that without knowledge of the location of Ms M.M.’s residence, work, church or college, the appellant could unwittingly breach the restraining order on numerous occasions, and on each of those occasions he could be charged. The respondent argues that the order is grounded in the findings of fact made by the Motions Judge, and also relies on the Children’s Lawyer report which specifically stated:
Given Mr. L.S.R.’s behaviour and his propensity to cross the line, it is out of an abundance of caution and given the circumstances of this case, identifying information with respect to [the child’s] school and/or with respect to Ms M.M. needs to be confined.
[18] Ms M.M. also argues that a knowledge requirement is not sufficient in itself, as the order may also be violated if Mr. L.S.R. is willfully blind.
New Issue Raised on Appeal
[19] The most significant challenge raised by Ms M.M. is that the knowledge issue was not raised on the motion, and should not be raised for the first time on appeal. I note that the appellant was represented by different counsel before the Motions Judge.
[20] New issues may not generally be raised for the first time on appeal: issues need to be raised by a litigant at the first opportunity in the litigation so that the issue can be dealt with in a timely manner and with a minimum of court proceedings. To do otherwise invites “litigation which never ends,” and may result in a person being “twice vexed for the same litigation”: Premi v. Khodeir, 2009 CanLII 42307 (ON SC), 2009 CarswellOnt 4737 (SCJ), para. 28.
[21] I have considered the interest of justice exception to the rule that new issues should not be raised for the first time on appeal: Perez v. Salvation Army in Canada, 1998 CanLII 7197 (ON CA), 1998 CarswellOnt 4750, [1998] O.J. No. 5126 (C.A.) at para. 11. I find that exception does not apply here. The appellant had the opportunity to raise the issue of the knowledge requirement in his response to Ms M.M.’s motion and he declined to do so. He should not be granted the opportunity to expand the litigation on appeal, in the absence of an opportunity for Ms M.M. to call evidence. This appeal seeks to extend the litigation to an issue the appellant ought to have raised in the first instance.
[22] In any event, the appellant properly concedes that if he was prosecuted for a breach of the restraining order under section 127 of the Criminal Code, the Crown would have to prove the mens rea element of the offence. This requires “intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the Court”: Oak Bay Marina v. Haida Nation 1995 CanLII 1464 (BCCA) at para. 11, citing United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC). If the criminal court finds that the appellant did not know and was not wilfully blind or reckless as to the fact that he was within 500 metres of a prohibited location, the Crown would not be able to discharge its burden. Indeed, it is highly unlikely that the case would proceed to a prosecution.
[23] The appellant, however, points to the potentially serious civil remedies under Family Law Rules 1(8) and 31, arguing that it would be contrary to justice not to have a similar knowledge requirement should the respondent pursue a motion under either Rule. I agree that lack of knowledge of breach would be an important element of a response to a civil motion, and should and could be raised in any civil motion sought to be brought by the respondent for breach. The civil remedies do not create absolute liability regardless of knowledge, wilfull blindness or recklessness as to the respondent’s presence at a location unknown to the appellant.
[24] In the result, I dismiss this ground of appeal.
Imposing Preconditions to Review of the Restraining Order
[25] The three year review period is not challenged on this appeal. The other two provisions in paragraph 4 of the restraining order are challenged, namely, the requirement that Mr. L.S.R. cannot seek to review the order until he provides: (a) satisfactory documentary evidence that he has shown remorse and insight into his past conduct, and (b) evidence that he has engaged in therapy or counselling which provides an opinion that the subject is unlikely to engage in such conduct in the future. I refer to these as the “remorse” and “counselling report” preconditions to review of the restraining order.
Standard of Review
[26] The appellant argues that in imposing the remorse and counselling report terms of leave without notice to the parties or seeking submissions, the Motions Judge has violated the requirements of procedural fairness and natural justice, and as such no standard of review analysis applies: the issue is whether the Motions Judge was fair. The respondent argues that the standard of review is palpable and overriding error, since this is a question of mixed fact and law. I disagree: the issue is clearly one of fairness.
[27] The failure to provide notice and the failure to allow parties to make submissions on such significant terms are issues of natural justice and procedural fairness to which no standard of review analysis applies. Whether or not the Motions Judge exceeded his jurisdiction in making these terms a pre-condition to seeking leave to review the restraining order is a question of law or jurisdiction, subject to a standard of review of correctness on appeal.
No Notice nor Opportunity to Make Submissions
[28] The Motions Judge imposed significant new remedies without notice to the parties or an opportunity to make submissions, and in so doing breached the rules of procedural fairness. As stated by the Court of Appeal in Sobeski v. Mamo, 2012 ONCA 560 at para. 38, in the context of a new theory of liability relied upon by a trial judge in a civil proceeding:
The Court of Appeal has recognized fairness concerns which arise when a Judge disposes of the trial on the theory of liability not raised by a party as a ground for appellate intervention. For example, in Rodaro v. Royal Bank of Canada et al., (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), Doherty J.A. held at paras. 60-61:
60 It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 CanLII 789 (ON CA), [1999] O.J. No. 4071 (Ont. C.A.) at para. 9:
. . . The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial. . . .
61 By stepping outside of the pleadings and the case as developed by the parties to find liability, Spence J. denied RBC and Barbican the right to know the case they had to meet and the right to a fair opportunity to meet that case. The injection of a novel theory of liability into the case via the reasons for judgment was fundamentally unfair to RBC and Barbican.
[29] A similar analysis applies to motions. Motions are defined by the relief sought by the parties. The Notice of Motion contained a clause seeking “Such further and other relief as this Court deems just.” However, a judge may not of his own motion devise a significant new remedy where that issue is not raised with the parties and they are not given the opportunity to make submissions. The appellant did not know the case he had to meet, and was not given an opportunity to meet that case; this was unfair to the appellant. On this ground alone I would strike paragraph 4 of the restraining order, but I go on to consider the arguments of the appellant that the Motions Judge exceeded his jurisdiction.
No Jurisdiction to Establish Significant Preconditions to Review of Restraining Order
[30] By setting up preconditions to any motion to review the order, which included a leave provision requiring the appellant to admit disputed facts as true (through the remorse provision), and ordering the appellant to attend counselling, the product of which would be a report to the court, the appellant argues that the Motions Judge exceeded his jurisdiction or erred in law, and a correctness standard applies. The respondent argues that this is a question of mixed fact and law, since the remedy is supported by findings of the Motions Judge that Mr. L.S.R. has anger issues, lacks insight and has failed to show remorse for his conduct, and as such the standard of review is palpable and overriding error. I find that the standard of review is correctness as this is an error in law and jurisdiction; even if it were palpable and overriding error, as discussed below, the significant errors in principle I identify would lead to the same result.
[31] The leave requirement and associated remorse/counselling report preconditions were not a proper exercise of the Motion Judge’s discretion to impose terms in a restraining order as set out in section 46(3) of the FLA:
46 (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:
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.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
[32] The respondent argues that the terms (remorse, counselling report) are “appropriate” and within the discretion of the Motions Judge in light of the protective purpose of the provision, the broad discretion granted by section 46(3)4, and the findings of fact relating to the appellant’s lack of insight and remorse.
[33] The appellant argues that the terms are not appropriate and that discretion is not untrammeled, but must be related to the provisions of a restraining order, not terms for leave to amend a restraining order that purports to bind a future judge. I agree.
[34] The remorse provision, which has the effect of preventing the appellant from applying to amend the restraining order until he provides “documented evidence that he has shown remorse and insight into his past conduct” is a direction to the appellant to admit to disputed facts, and an attempt to control the evidence. It is not the role of a judge to control the creation of evidence, but to act as an arbiter of fact and to draw inferences from evidence. The impugned provision creates a significant administration of justice concern, and an access to justice concern, in making it a precondition of coming to court that the appellant must admit to a particular fact – that he has remorse about his past (disputed) conduct.
[35] Termination of a restraining order has nothing to do with remorse: remorse is not a precondition. The test for whether a restraining order should be granted, under both section 46(1) of the FLA and section 35(1) of the CLRA, is whether the moving party “has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.” Where a restraining order is no longer necessary, usually with the passage of time with no incidents so a person no longer has reasonable grounds to fear for his or her safety, the party subject to the restraining order may apply to terminate or amend the order.
[36] In this case, however, the preconditions (remorse, counselling report) do not address the issue of whether the respondent has a continued fear of the appellant, and instead establish a precondition not contained in or contemplated by the statute. Moreover, these preconditions may in fact prevent the appellant from ever seeking to terminate the restraining order. This is an administration of justice concern given the significant effect on an individual’s life and liberty of the continued existence of a restraining order which may no longer be justified. This restraining order is registered with CPIC. As Justice Paulseth held in Children's Aid Society of Toronto v. L.S., 2017 ONCJ 506 (OCJ) at para. 44:
A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. It may affect a person's immigration status.
Leave Requirement Without Jurisdiction
[37] The appellant raises a further jurisdictional issue, arguing that the Motions Judge in his order created a leave requirement not set out in the statute, and contradicted by the Family Law Rules. Generally, parties may bring motions to amend or terminate restraining orders without leave, although motions must be case conferenced. There is no leave requirement for review of a final restraining order.
[38] The court can require parties to seek leave for interim orders pursuant to FLR. 14(21) as follows:
14 (21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.
[39] However, the motions judge did not refer to Rule 14(21), or make a finding that the appellant had met the requirements of Rule 14(21). Rather, without notice to the appellant, he established a “leave” requirement subject to three preconditions, before the appellant could seek to review the final order. This means, in essence, that he set out a leave requirement not contained in the Rules or the statute. He did not have jurisdiction to do so.
[40] The respondent relied on the decision of the Court of Appeal in Tiveron v. Collins, 2017 ONCA 462, in which the Court upheld the decision of the trial judge to prohibit the appellant from initiating any further court proceedings without leave of the Court. That high-conflict case involved a lengthy history of the father commencing proceedings involve multiple court attendances and multiple outstanding costs awards, where the father had informed the trial judge of his litigation tactics and strategy of returning to court. The trial judge found this to be an appropriate case to require prior court approval, based on the history of the litigation and to control “needless further court proceedings”, which the Court of Appeal upheld. That is a far cry from what happened here; the Tiveron case more akin to the Rule 14(21) situation, and the discretion in that case was exercised to ensure that appropriate scrutiny would be given to potential misuse of court proceedings as part of a litigation strategy. I find it has no application to the present situation.
[41] I would allow the appeal and strike paragraph 4 of the restraining order on this ground as well.
Remedy
[42] The appeal is allowed in part; for the reasons set out above, I strike paragraph 4 of the restraining order.
[43] If the parties cannot agree on costs, the appellant may send costs submissions, limited to 3 pages, together with a costs outline and offers to settle, if any, to my attention by February 15. The respondent’s 3 page submissions, with costs outlines and offers to settle, if any, are due February 22.
[44] I thank counsel for their very able submissions.
Justice Kristjanson
Released: February 8, 2018
COURT FILE NO.: FS-17-21499
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.M.
Applicant
(Respondent on Appeal)
– and –
L.S.R.
Respondent
(Appellant)
REASONS FOR JUDGMENT
KRISTJANSON J.
Released: February 8, 2018