Court File and Parties
COURT FILE NO.: F1348/14-1 DATE: November 15, 2018 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Rayvawn Michelle Falconer, applicant AND: Leonardo Mistretta, respondent
BEFORE: MITROW J.
COUNSEL: Genevieve M. Samuels for the applicant William R. Clayton for the respondent
HEARD: October 31, 2018
Endorsement
Introduction
[1] Each party brings a motion before a case conference. I am satisfied that there is sufficient urgency for the motions to proceed.
[2] The applicant seeks interim relief consisting of a restraining order and an order that supervised access exchanges occur at Merrymount Family Support and Crisis Centre (“Merrymount”).
[3] The respondent opposes the interim restraining order and seeks an interim order specifying the location of the access exchanges.
[4] Also, the respondent’s motion raises a preliminary issue that certain portions of the affidavit material filed by the applicant should be struck.
[5] For reasons that follow, an interim restraining order is granted; the respondent’s request to strike is dismissed except to the limited extent ordered below; and on an interim basis there shall be supervised access exchanges at Merrymount.
Brief Background
[6] The parties began their relationship in 2013. They resided together briefly from May 2014 to September 2014 when they separated. They have one child, Leo (“the child”), age 4, born in June 2014.
[7] The applicant described being involved in litigation from September 2014 to March 2018. A final order dated March 26, 2018 was made in accordance with minutes of settlement resolving all issues.
[8] Pursuant to this final order, the parties were awarded joint custody of the child, with the primary residence to be with the applicant. Important decisions regarding the child were to be made after the parties consulted with each other but with the applicant having the authority to make the final decision, subject to the respondent’s right to commence a court proceeding if he was of the belief that the final decision made by the applicant was not in the child’s best interests.
[9] The schedule of the respondent’s parenting time was set out in the final order and included alternating weekends and every Tuesday and Thursday from after school to 7 p.m.
[10] The applicant issued her current motion to change on October 12, 2018, asking for a number of changes in the final order based on the applicant’s allegations as to the respondent’s conduct subsequent to the final order.
[11] Coincident with the issuance of her motion to change, the applicant brought an emergency motion for interim relief and obtained an ex parte restraining order granted by Korpan J. on October 17, 2018. That ex parte order prohibited the respondent from contacting or communicating with the applicant, directly or indirectly, and from coming within 150 metres of the applicant, the applicant’s residence and also the applicant’s parents’ residence.
[12] The ex parte order expired October 31, 2018, being the date that the motions were argued. By that time, the respondent had filed his responding affidavit. The applicant continued to rely on the two affidavits that were before Korpan J.
[13] The facts, as discussed below, were sufficiently concerning that, on October 31, 2018, I vacated the case conference which had been scheduled before a dispute resolution officer for January 8, 2019 and instead I ordered an expedited case conference, before me, on November 30, 2018.
[14] Pending the release of these reasons, and at the court’s request, the respondent, through counsel, gave an undertaking on October 31, 2018 not to communicate with the applicant, directly or indirectly, and not to be within 150 metres of the applicant with the exception of communications between the parties in relation to access exchanges using an email account, to be provided that day by the applicant.
Respondent’s Motion to Strike
[15] The respondent seeks to strike portions of two affidavits: the applicant’s affidavit and the affidavit of the applicant’s mother. The paragraphs sought to be struck are listed in the respondent’s motion.
[16] The main argument advanced by the respondent in support of his motion to strike is that the impugned paragraphs are hearsay. The respondent submitted that the use of hearsay should be restricted, considering that the prime relief sought was a restraining order. No authority was cited for that proposition. Hearsay is admissible on motions: see r. 14(19). The respondent’s alternative submission was that minimum weight should be attached to the impugned paragraphs.
[17] I do agree with the respondent’s submission that the 1999 newspaper article attached as an exhibit to the applicant’s affidavit, describing the respondent being charged with aggravated assault as a result of an alleged stabbing incident, is inadmissible hearsay. The respondent does depose that the charge against him was withdrawn and that he was not convicted of stabbing anyone. Paragraph 24 and exhibit D of the applicant’s affidavit are struck.
[18] The remaining impugned paragraphs of the applicant’s affidavit are, in my view, admissible. I would note that paragraphs 22 and 23, dealing with the hearsay evidence of the child, allegedly telling the applicant that the respondent and his girlfriend asked the child to show them where he lived, are deserving of little or no weight given the child’s age. The respondent denies this allegation; it is his evidence that he does not know where the applicant resides.
[19] In relation to the affidavit of the applicant’s mother, I do not find that any of the impugned paragraphs are inadmissible, nor do I find that the impugned portions should be struck for any other reason. The issue, if any, may be one of weight.
The Allegations Relating to the Restraining Order and Each Party’s Request for an Interim Order Dealing with Access Exchanges
A. Restraining Order – Background Facts
[20] The applicant deposed that towards the end of the negotiations leading to the execution of the minutes of settlement that she was pregnant. The respondent was not the father; it was the applicant’s evidence that she concealed the fact of her pregnancy as it was her fear that the respondent would not settle if he was aware that the applicant was pregnant.
[21] On May 31, 2018, being a little over two months following the date of the final order, both parties were in attendance at the child’s soccer game. It was the applicant’s evidence that the respondent acted civilly towards her, in front of others, when he noticed that she was pregnant and in asking her about the pregnancy.
[22] However, the respondent very quickly thereafter forwarded to the applicant a lengthy and abusive text message.
[23] This text message I find is vituperative and vulgar. The levels of vitriol, abuse and misogyny that characterize this message are extreme.
[24] The applicant endured the obscenity of being called “idiot,” “whore,” “disgusting ugly person,” “pure east end trash at its finest” and the applicant was further subjected to the vile comment that “2 baby daddies suits you.”
[25] In an email on September 19, 2018, the respondent adds to the vitriol; he describes the applicant as a “failure in life”; he tells the applicant that she has “zero to offer other than a body which is just disgusting used and abused”; and the respondent writes that the applicant “is a horrible person that’s (sic) whale and ugly.”
[26] The foregoing examples of the respondent’s abusive language are not exhaustive. Further, while denigrating the applicant in his written communications, the respondent, on various occasions, revelled in narcissism, making an effort at one point to educate the applicant on the differences between them, telling her: “I’m a good person you’re no where near being a good person. The problem with my character is I was way too good of a person for you.”
[27] The applicant deposes that during the mid-afternoon of June 29, 2018 that she was getting ready to return the child to the respondent. She noticed that the tires on her car had been slashed and that the windshield was smashed. It was the applicant’s evidence that a brick and a blade that had been used to damage her vehicle were left beside the vehicle. Police were called.
[28] The applicant deposes that she then called the mother of the respondent’s oldest child, a boy age 9. The applicant learned from this person that her vehicle had been vandalized the prior evening. The applicant gave this information to the police when they attended at her home.
[29] The applicant also described her ongoing concern that access exchanges had become increasingly more difficult subsequent to the respondent becoming aware of her pregnancy. The applicant deposed that the respondent would throw the child’s belongings at her feet rather than handing them to her.
[30] The applicant’s evidence is that on August 18, 2018 there was an incident where she took issue with the respondent arriving with the child in the front seat of his Ferrari and the fact that the child was not secured properly in a car seat. The applicant deposed that the respondent has other vehicles where the child could have been properly secured in the backseat. The applicant deposed that the respondent called her names – “fat ass” and “a fucking whore” – in the child’s presence as she was placing the child in her vehicle. The respondent does not specifically address this incident.
[31] Given the foregoing, and the applicant’s concerns regarding the respondent’s behaviour, the applicant’s parents began to accompany the applicant to access exchanges. The applicant’s evidence also is that she has, out of fear, not disclosed her address to the respondent. The applicant also describes that she “and her family” take detours home in case they are being followed.
[32] The applicant’s mother deposed that on September 11, 2018 that she accompanied the applicant to pick up the child from the respondent (at a McDonald’s restaurant); it was the evidence of the applicant’s mother that the respondent threw the child’s backpack at the applicant and that the respondent “shoved” the child at her (the applicant’s mother) and walked away. This is corroborated by the applicant. The respondent does address this incident specifically; he denies throwing the backpack and he denies shoving the child towards the applicant’s mother.
[33] The applicant’s mother deposed that the next day, September 12, 2018 at approximately 4 a.m., that her car was engulfed in flames while parked in the driveway of their home. The applicant’s mother believes that this was arson based on what was found under the car during the police investigation.
[34] The applicant further described aggressive conduct by the respondent towards her father, including the respondent driving at the van that the applicant’s father was driving. This was alleged to have occurred on September 13, 2018 during an access exchange attended by the applicant’s parents as the applicant was in hospital giving birth to her youngest child. The applicant deposes that her father raised the arson incident with the respondent.
[35] The respondent does address this September 13th occurrence specifically in his affidavit, denying the applicant’s allegations and deposing that the applicant’s father accused him falsely of “burning vehicles.” The respondent adds that the applicant’s father has twice threatened his life, including during an access exchange in the presence of the child.
[36] While the applicant’s evidence as to the September 13th incident is admissible hearsay, I decline to place much weight on the applicant’s allegations. I draw an adverse inference from the applicant’s failure to provide evidence directly from her parents. The applicant’s mother, who had signed an affidavit, failed to address this occurrence specifically.
[37] The respondent, for his part, denies having had anything to do with damaging the applicant’s vehicle and setting fire to her mother’s vehicle. Near the beginning of his affidavit, he demurs generally to the applicant’s allegations, deposing that they are the product of a “febrile” imagination unconnected to reality.
[38] The respondent deposed that the fact of the applicant being pregnant by another individual would be “of no moment” to him. That statement, I find, is quite unbelievable; it is belied by the respondent’s unrestrained vulgarities in his written communications to the applicant on that very topic.
B. The Law in Relation to Restraining Orders
[39] The applicant seeks the interim restraining order pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, the relevant portions of which are reproduced:
Restraining order
46 (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.
Same
(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.
Provisions of order
(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.
[40] It is noted that s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 contains similar provisions for a restraining order [1].
[41] For an interim restraining order to be made in the case at bar, the court must be satisfied that the applicant has reasonable grounds to fear for her safety or the safety of the child: s. 46(1).
[42] The applicant relies on Docherty v. Melo, 2016 ONSC 7579 (S.C.J.). Although the facts differ somewhat from the case at bar, I find helpful the following review by Price J. in Docherty regarding the relevant jurisprudence (emphasis in the original; footnotes deleted):
31 In Callon v. Callon, [1999] O.J. No. 3108 (Ont. Div. Ct.), in 1999, the Divisional Court considered a motion for leave to appeal an interim order pursuant to s. 46 of the Family Law Act restraining a party from communicating to third parties about the moving party. In brief reasons for judgment, the court 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." [2]
34 In Azimi v. Mirzaei, 2010 ONSC 3790, in 2010, Mesbur J. stated:
... Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety. [3]
35 In Fuda v. Fuda, 2011 ONSC 154, in 2011, Justice McDermot stated:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. [4]
37 In McCall v. Res, 2013 ONCJ 254, in 2013, Justice Spence, of the Ontario Court of Justice, after reviewing the jurisprudence, granted the Applicant's request for a s. 46 restraining order. He concluded:
What I take from these cases is:
• The fear must be reasonable • The fear may be entirely subjective so long as it is legitimate • The fear may be equally for psychological safety, as well as for physical safety [5]
[43] In Lawrence v. Bassett, 2015 ONSC 3707, a case relied on by the respondent, Kiteley J. underscored the point that the fear may be equally for psychological safety as well as physical safety, stating (footnotes deleted):
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. Violence has also included the content of text messages which were found to be threatening, intimidating and intended to be taken seriously.
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 Spence J. granted the Applicant's request for a s. 46 restraining order after he reviewed prior cases 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.
[44] In Bedzow-Weisleder v. Weisleder, 2018 ONSC 1969, also a case relied on by the respondent, one of the issues at trial was whether a restraining order ought to be issued. The evidence in support of the restraining order centered around communications from Ms. Bedzow consisting of emails, texts and Instagram posts. These were found to be “harassing, abusive, vulgar, and hateful” (para. 13). Akbarali J. also found that fear may be equally for psychological safety as well as for physical safety, stating as follows:
34 The relevant factors for granting such an order are set out in Tiveron v. Collins, 2014 ONCJ 574 (Ont. C.J.), at paras. 168-169 ["Tiveron"]: (i) the applicant must have a reasonable fear for his safety; (ii) the fear may be entirely subjective as long as it is legitimate; and (iii) the fear may be equally for psychological safety as well as for physical safety.
35 I conclude that Ms. Bedzow's communications engender a legitimate fear in Dr. Weisleder for his psychological safety. In evidence, Dr. Weisleder confirmed the highly upsetting nature of Ms. Bedzow's communications. The communications are emotionally abusive and Dr. Weisleder should not be subject to them. I thus conclude that the grounds for a permanent restraining order with respect to Ms. Bedzow's communications to Dr. Weisleder under s. 46(1) of the FLA have been made out.
C. Discussion – Restraining Order
[45] The respondent argues that the communications between the parties, filed as exhibits, on the whole, demonstrate that the applicant was not fearful of the respondent; the respondent points to some conversations, which are like arguments, where the respondent submits that the applicant is quite insistent on pursuing her viewpoint and does not appear to exhibit any fear of the respondent.
[46] I am unable to accept the respondent’s submission.
[47] The respondent, in his affidavit, fails to address the abusive nature of his written communications. He does not deal specifically with the incident where the applicant deposed that he directed vulgar language towards her in the presence of the child when the applicant complained that the child had not been properly secured in a car seat.
[48] The preponderance of evidence on the motion suggests that the respondent has acted aggressively or in a verbally abusive manner towards the applicant and also her mother at access exchanges. There is corroborating evidence from the applicant’s mother. The respondent’s intimidating behaviour at access exchanges, his anger towards the applicant as manifested by his verbal abuse and the abusive electronic communications, together constitute reasonable grounds for the applicant to fear for her psychological and physical safety. I come to this conclusion without considering the property damage to the three vehicles.
[49] When the damage and/or destruction of the three vehicles is considered, this probative circumstantial evidence, I find, legitimately increases the level of the applicant’s fear for her psychological and physical safety when this evidence is considered in the context of the respondent’s anger, his verbal abuse, his intimidating behaviour at access exchanges and the abusive content of his electronic communications. The applicant’s mother’s vehicle was destroyed the morning following her unpleasant interaction the previous day with the respondent at the access exchange.
[50] It is reasonable and legitimate for the applicant’s fear of the respondent to be enhanced by her belief that the respondent was involved in the property damage involving her vehicle and her mother’s vehicle, and likely the vehicle owned by the mother of the respondent’s other child, despite the respondent’s denials.
[51] Subjectively, from the applicant’s perspective, considering all the circumstances, the respondent’s involvement is much more likely than the likelihood of three vehicles being randomly targeted by unknown persons with no connection to the parties, and who, by pure chance, selected three victims, all of whom have a close connection to the respondent.
[52] The applicant does not oppose communications between the parties using a designated email address provided by the applicant to discuss child-focussed issues, with all communication to be brief and polite. The applicant also proposes that the restraining order be subject to contact and communication through or in the presence of counsel, and that the prohibition of coming within 150 metres of the applicant should not apply to the child’s school or extracurricular activities. The applicant proposes that the restraining order should contain those exceptions. I agree.
[53] Subject to the foregoing, the restraining order will have similar terms as the existing ex parte restraining order.
[54] At some point, this case will need to be dealt with on a final basis. The respondent’s behaviour subsequent to this interim order, including the nature of his communications with the applicant, will be factors for the court to consider in determining whether a restraining order on a final basis should be granted.
D. Access Exchanges
[55] Given the level of animosity between the parties, including the behaviour of the respondent as discussed earlier, it is in the child’s best interests for supervised access exchanges to takes place at Merrymount where possible.
[56] The use of Merrymount will be limited to the circumstances as set out in the order below. The Merrymount schedule was not provided. Where access exchanges do not occur at the school, there may be times when Merrymount is not available to accommodate the parties’ access exchange schedule pursuant to the existing order.
[57] Given that the parties live in opposite ends of the city, I agree with the respondent’s suggestion that the pickup of the child by the respondent should be at a location near the applicant’s residence, and that the return of the child to the applicant should be at a location near the respondent’s residence.
Order
[58] I make the following interim order:
Paragraph 24 and Ex. D of the applicant’s affidavit sworn October 12, 2018 are struck; otherwise the respondent’s motion to strike is dismissed.
An interim restraining order against the respondent shall issue in accordance with the restraining order endorsement sheet dated today.
There shall be supervised access exchanges at Merrymount Family Support and Crisis Centre (“Merrymount”) subject to the following: a) the costs shall be shared equally by the parties; b) where possible, access exchanges shall occur at the child’s school; c) if access exchanges cannot occur at the child’s school, then the access exchanges shall occur at Merrymount but only if Merrymount is available, and open, when the access exchange is scheduled to take place according to the existing final order; and d) both parties immediately shall contact Merrymount and schedule an intake appointment.
Where access exchanges cannot take place at the child’s school or Merrymount, then: a) the access exchanges shall occur at the McDonald’s restaurant parking lot at Hamilton Road and Highbury Avenue at the beginning of the respondent’s parenting time; b) the access exchanges shall occur at the Loblaws parking lot at the northwest corner of Oxford Street and Hyde Park Road at the conclusion of the respondent’s parenting time; and c) so long as the interim restraining order is in effect, the respondent shall send a designate to the access exchange unless the applicant indicates via email that she will not be present.
If the parties are unable to agree on costs, then written costs submissions shall be made within 3 weeks; the written costs submissions shall be forwarded to the trial coordinator and shall not exceed two typed pages, double-spaced, plus any bills of costs, time dockets, offers and authorities.
“Justice Victor Mitrow” Justice Victor Mitrow
Date: November 15, 2018
[1] The relevant portions of s. 35 are: Restraining order
35 (1) On application, the court may make an interim or final restraining order against any person 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.
Provisions of order
(2) 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.
[2] Callon v. Callon, [1999] O.J. No. 3108 (Ont. Div. Ct.), at para. 1
[3] Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), at paras 7 and 9
[4] Fuda v. Fuda, 2011 ONSC 154, at para. 31, quoting Dunn J. in Khara v. McManus, 2007 ONCJ 223, 2007 CarswellOnt 3159 (Ont. C.J.), at para. 33