Superior Court of Justice - Ontario

COURT FILE NO.: FS-17-90997-00 DATE: 2019-10-17

RE: URMILA MALIK, Applicant AND: BINESH MALIK, Respondent

BEFORE: Regional Senior Justice Peter A. Daley

COUNSEL: Georgina L. Carson, for the Applicant Daniel W. Simard, for the Respondent

HEARD: September 18, 2019

ENDORSEMENT

INTRODUCTION:

[1] The applicant brought a motion originally returnable before the court on August 1, 2019. My reasons for decision released on September 3, dealt with several items of relief sought by the applicant on the return of her motion, however her request for a temporary restraining order against the respondent was adjourned to September 18.

[2] At the conclusion of submissions by counsel a brief handwritten endorsement was made, which is included in the endorsement file in the court record. That endorsement related to the rescheduling of the return of the initial motion, in the event any issues raised on that motion have not been adjudicated and further with respect to the rescheduling of the timeline for the delivery of submissions on costs in respect of the applicant’s motion.

[3] On September 18, counsel made submissions solely with respect to the applicant’s request for a restraining order.

[4] For the reasons outlined below, I have concluded that the granting of a temporary restraining order, as requested, is both necessary and proper.

BACKGROUND:

[5] The parties separated in August 2017 following what the applicant alleges was an assault on her and her daughter.

[6] Subsequently on November 28, 2017 the applicant asserts that while she was driving the respondent to a GO station he asked her to guarantee a business loan for $400,000 and she would not agree to do so. She asserts that the respondent became very angry and upon getting out of the car he slammed the door to the vehicle, pointed at her and gestured angrily as if he was cutting his own throat. Then he pointed his hand in the shape of a gun at his head. Notably, the respondent’s brother had committed suicide in 1999 at the time his marriage broke down.

[7] Following this incident the applicant filed an Application for Divorce on December 1, 2017.

[8] The following is a chronology of significant incidents/events alleged by the applicant as to the respondent’s conduct:

July, 2012

The husband threw the wife towards the stove and she landed hard on the kitchen floor. The children intervened and the husband became physically aggressive with them both. The wife begged the children to leave and called a family member to take the children away.

February 12, 2016

The husband was arrested around 2:00 a.m. for drinking and driving. The location of his arrest was five minutes from the home of a woman with whom he was having an affair. In the arrest report, he mentioned that he was “just dropping his girlfriend off.”

March 6 and 10, 2016

The husband emailed the wife admitting to lying to her, yelling at her and treating her poorly. However, whenever the wife agreed to stay in the marriage, his behaviour would again become angry, aggressive and controlling. The husband admitted in a letter, dated March 10, 2016 he has “anger management issues.”

January 8, 2017

The husband became enraged and began to throw household items and the wife’s belongings. The husband threw sentimental items into the backyard (including dishes gifted to her by her mother). The wife telephoned 9-1-1, but their daughter hung up the phone. The wife feared her husband’s reaction to the call and did not call back. The police attended the home which was in disarray. The wife was too afraid of the husband to tell the police about the husband’s history of abuse.

August 25, 2017

The husband became enraged and began to call the wife demeaning names including whore. Her husband’s young niece was terrified, and the parties’ daughter tried to intervene. The husband grabbed his daughter’s neck and punched her several times in the face as the wife grabbed his band attempting to free their daughter. The husband threw the wife to the sofa, hitting her on the forehead and top of her head with the back of his own hand several times. The parties’ daughter and the husband’s brother restrained him from further aggression and pulled him from the wife.

August 30, 2017

The parties separate on a final basis. The wife retained counsel who wrote to the husband on August 31, 2017 confirming her intention to separate and noting her fear of him as a result of his past and escalating aggression and violence against the wife.

September, 2017

The husband sent the wife legal documentation to transfer her 50 per cent interest in their joint investment property.

September 19, 2017

The husband was convicted of drinking driving. The husband’s driver’s license was suspended for at least six months, subject to his participation in a program after which he was permitted to drive but was required to activate a breathalyzer device for one year. The husband brought an application for a stay of proceedings based on pre-trial delay which was dismissed, and the earlier finding of guilt was registered on the single charge of driving with excess blood alcohol.

November 4, 2017

The husband emailed the wife to return the signed corporate loan documentation and give it to the parties’ son to give to him the next day.

November 6, 2017

The husband sent the wife a series of text messages and threatened that he would take their family dog and sell the matrimonial home if she did not sign the corporate loan for approximately $400,000.

November 7, 2017

Early one morning while the wife was at work, the husband sent a threatening text message. The husband warned the wife not to show the documents to her family law lawyer or else she would have to deal with Intact’s legal department.

November 16, 2017

The husband emailed the wife saying he would come to the home that evening to go over the corporate loan documentation and the wife asked him not to.

November 20, 2017

The husband emailed the wife again regarding the corporate loan.

September to November 25, 2017

Although the husband had vacated the matrimonial home, the wife acquiesced in the husband occasionally retuning to the home on weekends to see the children but, only when the children were present. The wife acquiesced in the husband attending the home to try to keep the peace.

December 1, 2017

The husband sent the wife a text message at 9 a.m. in response to her asking him not to come to the home stating, “Really…the only thing u need to be afraid of is me killing myself…maybe that will give you peace.”

December 2-3, 2017

The husband admits to behaving wrongly (December 2017, 9:01 a.m.) and he continued to ask the wife to come home and she stated, “No Ben I can’t live in fear. I couldn’t even breathe when you threatened me on Tuesday.” On December 3, 2017, the husband admitted in a text message sent to the wife at 9:10 a.m. that he wanted to kill himself.

At 9:42 a.m. the husband sent the wife the following text, “Just to remind you…the house is still half mine…and I will come and go as I please…I don’t need your permission.”

December 15, 2017

Despite her counsel’s letter, the husband’s choice to vacate the matrimonial home months before and against her express wishes, the husband attended the matrimonial home with his girlfriend insisting it was his right to be there. He kicked the door in an attempt to gain entry. The wife called 9-1-1 and the police attended.

December 16, 2017

The wife called a security company and a security guard attended the home. The husband brought the police in an attempt to gain entry to the home. The police did not let him in. However, the police told her they could not protect her without a restraining order.

December 20, 2017

The wife attended the police station to report the assaults of August 25, 2017.

December 22, 2017

The husband was criminally charged with assault against the parties’ daughter and the wife.

April 4, 2018

In breach of his criminal undertaking not to communicate with the wife, the husband’s cell phone called the wife’s home telephone line, but she did not answer. The wife could see his cell number on the caller’s ID/display on the phone. The wife’s Victim Services case worker told her, and she believes that the husband claimed he had “pocket dialed” her home telephone number by mistake and that the police officer told the husband to remove the wife’s contact information from his cell phone. Nonetheless, the husband again sent the wife text messages in July, 2017 in violation of his criminal undertaking.

April 2018

The wife installed home security cameras as she was having trouble sleeping and feared leaving the home.

July 5, 2018

Two days before the parties’ son’s birthday, the husband breached his criminal restraining order and sent her several text messages. Knowing full well he was in breach of his bail conditions, he ended his messages with “please do not calm [sic] the police”.

The husband deliberately sent the wife the message in Punjabi.

August 11 2018

The husband was charged with breaching his bail conditions.

March 29, 2019

The wife and her counsel independently receive a disturbing demand letter dated March 29, 2019 from Caleb Edwards of Miller Thomson LLP. This letter was sent to the wife’s counsel and a separate copy hand-delivered to the wife. The husband is the controlling interest of Breckles Group through the 54.1 per cent ownership held through the parties’ holding company. The letter threatened court action by Breckles Group against the wife and her counsel if a proposed sale did not close by April 15, 2019. No further disclosure regarding the proposed sale was received pending this threatening letter.

September 3, 2019

Justice Caponecchia’s oral reasons confirm she found the husband probably guilty but acquitted the husband on the basis that the Crown had not met the high threshold of proof beyond a reasonable doubt.

[9] It is the evidence of the applicant that the respondent’s conduct was an escalating scale of controlling, aggressive, demanding and demeaning conduct along with physical violence. She also asserted that she endured sexual abuse during the course of the parties’ marriage as well.

[10] The respondent in his affidavit evidence asserts that any of the events outlined by the applicant that predate August 25, 2017 are irrelevant for the purpose of the motion as they predate their date of separation. Further, he takes the position that the events predating the charges being laid against him cannot be used in support of the applicant’s contention that she was fearful for her safety. Finally, the respondent states that in addition to his acquittal, the provincial court judge concluded that the applicant’s evidence contained inconsistencies and as such a restraining order should not be granted.

[11] As a result of events that occurred on August 25, 2017 in the basement of their home, the respondent was charged with two counts of assault, one against the parties’ 23-year-old daughter and the other against the applicant.

[12] While these charges were pending against the respondent, and in spite of terms in his bail recognizance preventing him from communicating with his wife and daughter, he called and texted the respondent and attempted to pressure the applicant, through a nephew to drop the charges against him.

[13] In her reasons for judgment released on September 3, 2019, Caponecchia J. of the Ontario Court of Justice, after having reviewed the evidence of these parties and the witnesses called stated: “As a result of the difficulties I have identified, I am only satisfied that Mr. Malik is probably guilty. That is not proof beyond a reasonable doubt.”

[14] In the result the respondent was acquitted on both charges.

Analysis:

[15] The applicant seeks a restraining order pursuant to s. 46 (1) and (2) of the Family Law Act – Family Law Act R.S.O. 1990, c. F.3:

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. 2009, c. 11, s. 35.

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. 2009, c. 11, s. 35.

[16] The applicant further seeks an order that any restraining order granted be registered in the Canadian Police Information Centre Database (CIPIC) for enforcement purposes. Any restraining order granted shall be prepared by a clerk of the court pursuant to Rule 25 (11) (b) (i 1) and Rule 25 (11.1) and in accordance with Form 25 F.

[17] The test that must be considered in determining whether or not a restraining or non-harassment order should be granted 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.”

[18] The decision of Fuda v. Fuda 2011 ONSC 154, McDermot J. at para 31 considers the test for granting a restraining order and stated as follows:

[31] The test for whether a restraining order should be granted is, under both s. 46(1) of The Family Law Act and s. 35(1) of The Children’s Law Reform Act 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.” This test was considered in Khara v. McManus, 2007 CarswellOnt (C.J.) which was a trial of an application for a restraining order. Justice P.W. Dunn stated, at para. 33 as follows:

When a court grants a restraining order in an applicant's favour, the respondent is restrained from molesting, harassing or annoying the applicant. 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. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. 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.

[19] In her decision in Azimi v. Mirzaie, 2010 CarswellOnt 4464 at paras. 7 and 9, Mesbur J. stated in granting a permanent restraining order against the applicant husband:

“More importantly, 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 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.”

[20] Counsel for the respondent urged that the type of restraining order being sought by the applicant was unnecessary given that the applicant had in order in her favour under s. 24 (5) and (6) granting her exclusive possession of the matrimonial home. Counsel submits that subsections (5) and (6) provide sufficient protection for her, without the requirement of a CIPIC registered restraining order as the sections provide that any one acting in contravention of an order for exclusive possession is guilty of an offence punishable by a fine and imprisonment and that a peace officer may arrest such a person suspected of this statutory breach without a warrant.

[21] It was further submitted on behalf of the respondent that the granting of a restraining order with CIPIC registration would be an excess of restraint on the respondent’s freedom and that such an order would interfere with the respondent’s ability to travel and in particular to travel into the United States. There was no evidence offered in support of this position by the respondent.

[22] The evidence adduced on behalf of the applicant indicates that the respondent, has in the past, made suggestions that he was suicidal and that he would take his life given the circumstances surrounding the parties’ marriage breakup.

[23] Counsel for the applicant introduced social science literature regarding the history of domestic violence increasing the risk of harm to women post-separation. Counsel referred to a paper co-authored by Peter G, Jaffe entitled, Custody Disputes Involving Allegations of Domestic Violence: Toward A Differentiated Approach to Parent Plans.

[24] It was urged by counsel for the applicant that the social science literature demonstrates that women who have been in abusive relationships continue to be at risk after separation and that the applicant may indeed be at a greater risk in this case, as the abuse may take many forms including physical, sexual and controlling behaviour, as well as threats of suicide.

[25] The International and Multidisciplinary Association of Family and Conciliation Courts (AFCC) Guidelines for Child Custody Evaluators provides an overview regarding domestic violence in the context of custody and access assessments, which may be relevant to the applicant’s request for a restraining order in this case. The indicia examined in this context include evidence of: (1) physically aggressive behaviours involving the intentional use of physical force with potential for causing injury, harm, disability or death; (2) sexually aggressive behaviours involving unwanted sexual activity that occurs without consent through the use of force, threats, deception or exploitation; (3) economically aggressive behaviours that involve the use of financial means to intentionally diminish or deprive another of economic security, stability, standing or self-sufficiency; (4) psychologically aggressive behaviours involving intentional harm to emotional safety, security or well-being; (5) coercively controlling behaviours involving harmful conduct that subordinates the will of another through violence, intimidation, intrusiveness, isolation and/or control.

[26] These guidelines also observed that violence may be a reaction to the stress of separation or divorce within a history of violence or propensity for future violence.

[27] While the social science literature addressed and introduced by counsel for the applicant is informative and may have an application to the circumstances involving these parties, the findings and opinions expressed by the authors are not ultimately determinative of the outcome of this motion.

[28] During the course of counsel’s submissions, I requested that they address how the decision, findings of fact and conclusions reached by Caponecchia J. may be used or considered by me in determining the outcome of this motion. Counsel each filed supplementary written submissions regarding this.

[29] As to the evidence contained in this record regarding the applicant’s “reasonable grounds to fear for [her] own safety”, I am satisfied on the balance of probabilities that the incidents outlined above did occur as described by the applicant in her evidence and that given the duration over which these events occurred, which included physical, sexual, emotional, and financial threats and abuse, the applicant has demonstrated that she has reasonable grounds to fear for her own safety and continues to have such a fear at this time.

[30] Counsel for the respondent submitted that there has been no incidents of contact or attempts at contact either direct or indirect by the respondent with the applicant since he was charged with the assaults. While there is a dispute as to whether that is in fact accurate or not, even if it was – the respondent was, throughout, following the charges being laid, subject to recognizance terms that prohibited him from making any contact with the respondent or her daughter. Thus the submission carries little weight at all.

[31] As to the application of the findings and conclusions of Caponecchia J., both counsel have referred to and rely upon the Supreme Court of Canada decision of Binnie J. in British Columbia (Atty. Gen.) v. Malik 2011 SCC 18 and the decisions referred to by counsel which followed it.

[32] In Malik the court considered the issue of whether or not prior civil or criminal judgments are admissible as proof of their findings and conclusions in a subsequent proceeding. Malik was a civil case based on a claim related to a debt, breach of contract, conspiracy and fraud. The court at first instance granted an Anton Piller order to the Crown to search the business and residential premises for evidence that assets had been concealed to obtain state funding for Malik’s legal defence to criminal charges. The judge at first instance relied upon findings and conclusions made earlier by another court in Malik’s Rowbotham application seeking state funding of his defence.

[33] On appeal, the British Colombia Court Of Appeal set aside the Anton Piller Order on the basis that the findings and conclusions made by the court on Malik’s Rowbotham were for the most part inadmissible and as such there was no evidentiary basis for the granting of the Anton Piller order.

[34] In overruling the British Colombia Court of Appeal Binnie J. writing for the court stated at para 7:

In my view, for the reasons that follow, a judgment in a prior civil or criminal case is admissible (if considered relevant by the chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight. The prejudiced party or parties will have an opportunity to lead evidence to contradict it or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel or abuse of process).

[35] As to the weight to be accorded to the prior judgment in the extant proceedings at para. 42 Binnie J. stated as follows:

Of course the weight of the prior judgment will depend on such factors as the similarity of the issues to be decided, the identity of the parties, and (because of the differing burdens of proof) whether the prior proceedings were criminal or civil. As the Sopinka text points out: “The fact that it is a civil judgment only would be significant in terms of weight. The party against whom the judgment was rendered would have a greater opportunity to explain it or suggest mitigating circumstances” (Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd ed. 2009), at §19.177).

[36] The respondent’s case is largely based on general denial of any of the conduct asserted by the applicant.

[37] Furthermore, the respondent focuses primarily on the events leading to the criminal charges, of which he was acquitted as representing the evidentiary foundation upon which the applicant is a relying.

[38] I find as a fact that the applicant has been the subject of physical, emotional, sexual and financial oppression and abuse for several years prior to the parties’ separation and that the oppressive conduct has continued throughout the course of this litigation. That abuse has included the respondent’s failure to make full and frank disclosure of all of his financial circumstances and the record is abundantly clear as to his conduct and his breaches. The applicant has, with the aid of counsel, gone to exceptional lengths to obtain timely and fulsome disclosure of the large and complex financial and corporate arrangements in respect of which both parties have an interest.

[39] As was noted by Spence J in McCall v. Res , 2013 ONCJ 254 the fear component of the restraining order test requires 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.

[40] It was urged on behalf of the respondent that the finding of the provincial court judge as to the cause of the applicant’s fear at the time of the alleged assault in August 2017 was not related to the respondent’s conduct. In her reasons for judgment the trial judge stated as follows: “I can accept that this period of time was a confusing and emotional time for Mrs. Malik. However, based on the evidence I have heard, I am not convinced that her motivation for going to the police had so much to do with a fear for her safety, as a fear of having to share her home with her husband who had cheated on her as they went through an acrimonious separation.”

[41] As already noted, in considering this motion, I must assess the entire evidentiary record and not simply the time and events giving rise to the charges against the respondent. This comment made by the trial judge was solely connected with the one isolated set of events giving rise to the charges and did not involve consideration of the multiple incidents over many months that were not before that court.

[42] For the reasons expressed in the Supreme Court of Canada decision in Malik, I have concluded that the judgment from the Ontario Court of Justice is admissible on this motion given that the parties were the same or were participants in the prior proceedings related to one alleged incident of assault as between the respondent as the alleged perpetrator and the applicant as the alleged victim.

[43] As to the weight to be accorded to the evidence I have concluded that significant weight as to the factual findings made by the trial judge is warranted in this case.

[44] The acquittal of the respondent on both charges based on the failure of the Crown to establish criminal liability beyond reasonable doubt is not determinative as to what weight should be accorded to the findings of fact made by the trial judge.

[45] Although the trial judge acquitted the respondent of the charges both in respect of the applicant and their daughter, she concluded that he was “probably guilty”. It’s trite to note that the evidentiary burden on this motion is one based on the balance of probabilities.

[46] In reviewing the respondent’s trial testimony, the trial judge’s findings as to his state of mind and conduct on the day in question in particular are applicable to the issues at stake on this motion and I have concluded that the trial judge’s findings, while not binding upon this court, certainly are of great influence. In particular, the trial judge made the following finding with respect to the respondent’s conduct: “His actions on this day speak louder than his words in court. I find he was angry and out of control, and for him to ask this court to believe otherwise, is insincere in the extreme.”

[47] Combined with that finding, the trial judge concludes that while she cannot convict the respondent of assault she was “satisfied that Mr. Malik is probably guilty”.

[48] On the whole of the evidentiary record and given the history of the conduct of the respondent, I am satisfied on the balance of probabilities that the respondent’s conduct formed subjectively reasonable grounds on the part of the applicant to fear for her own safety, both physically and mentally and that that fear has continued and will continue given the lifting of the terms of bail recognizance as a result of the respondent’s acquittal on the assault charges.

[49] As is apparent from the prior interlocutory decisions of the court in this case, the respondent has demonstrated absolutely no regard whatsoever for orders of the court and as such in order to ensure that the interests of justice are met and that the applicant is free of direct or indirect contact or communication from the respondent, I have concluded that an order pursuant to s. 46 of the Family Law Act restraining the respondent is necessary.

[50] Counsel for the applicant submitted a draft order on the principal issue at stake on this motion to which was attached a formal restraining order as specified in Form 25 F. Attached to this endorsement is a copy of the order and the restraining order, both of which I have amended in writing, which shall issue in accordance with these reasons.

[51] A further attendance in court shall be scheduled with my administrative assistant to address the issue of costs and any matters arising from the applicant’s motion which have not yet been addressed.

[52] Counsel shall serve and file submissions as to costs of no longer than 5 pages, plus a costs outline at least 4 days prior to the next court attendance.

Daley RSJ.

Dated: October 17, 2019

COURT FILE NO.: FS-17-90997-00 DATE: 20191017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: URMILA MALIK, Applicant AND: BINESH MALIK, Respondent

BEFORE: RSJ Peter A. Daley

COUNSEL: Georgina L. Carson, for the Applicant Daniel W. Simard, for the Respondent

ENDORSEMENT

Daley RSJ.

DATE: October 17, 2019