COURT FILE NO.: FC-19-FO-160 DATE: 2020-04-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hadassah Ama Stapley, Applicant AND Matthew Joshua Stapley, Respondent
BEFORE: Madsen J., In Chambers
COUNSEL: Ms. Reitzel, for the Applicant
HEARD: April 16, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Applicant mother, Hadassah Stapley. She asks that the court make an ex parte order on an urgent basis for a restraining order against the Respondent father, Matthew Joshua Stapley. She also seeks an order for interim sole custody, and an order that the father have access at her discretion, and permission to serve him by email.
[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[4] The following materials were filed with the court by email at Kitchener.Superior.Court@ontario.ca:
(a) Notice of Motion dated April 2, 2020; (b) Application, signed April 2, 2020; (c) Financial Statement sworn April 2, 2020; (d) Affidavit of Ms. Stapley, sworn April 2, 2020; (e) Form 35.1, sworn April 2, 2020; (f) Support Deduction Order; and (g) Draft Order and Draft Restraining Order.
[5] None of the materials have as yet been served on the father.
[6] In summary, Ms. Stapley sets out the following in her affidavit:
(a) The parties were married November 8, 2013 and have one child, A., who is 5 ½ years old. The parties have separated several times. (b) Ms. Stapley says A. reported to her on two occasions that Mr. Stapley had touched her genitals. Family and Children’s Services of Waterloo Region investigated but did not verify A.’s statements. (c) On April 11, 2019, the parties entered into a separation agreement. That agreement provided that Mr. Stapley would have supervised access to A. Ms. Stapley was often the person who supervised Mr. Stapley’s time with A. (d) After signing the separation agreement, Ms. Stapley says she felt “immense pressure” from her family and church to “make things work” with Mr. Stapley. She started spending time at Mr. Stapley’s home with A., never leaving A. alone with him. When things became difficult, she would take A. and stay with her parents. (e) Ms. Stapley says Mr. Stapley was violent towards her. She says that on one occasion he grabbed her throat and choked her in front of A. (f) In December 2019, Ms. Stapley asked subsidized housing to expedite her application. An apartment came available for February 1, 2020. She told Mr. Stapley at the last minute as she was afraid of his reaction. She moved into subsidized housing. (g) Ms. Stapley continued to supervise Mr. Stapley’s time with A. after she moved. During one of the visits Mr. Stapley said he would kill anyone she dates by slitting their throat. (h) On February 17, 2020, Mr. Stapley sent Ms. Stapley an email stating he wished to kill himself. A copy of that email was appended as an exhibit to her affidavit. (i) Ms. Stapley has not supervised any parenting time since March 21, 2020, because she feels Mr. Stapley’s aggressive behavior is escalating. On that weekend there was an incident at Ms. Stapley’s parents’ home, during which she says he accosted her parents with questions about whether she is in a new relationship. She says that Mr. Stapley tried to grab A. and leave with her. Mr. Stapley left when Ms. Stapley threatened to call the police. (j) Ms. Stapley says Mr. Stapley has been sending threatening communications to her since March 21, 2020. She believes he has used a cellphone app to create another phone number for the purpose of texting her. On March 25, 2020, she received a text that she believes is from him which reads “What you do to others will surely happen to you one day.” The text accompanies a meme of someone pushing another person off a bridge. A copy of that email was also appended as an exhibit to her affidavit. (k) Ms. Stapley was so concerned by the communications she was receiving from Mr. Stapley that she changed her phone number. Ms. Stapley says that after she changed her phone number Mr. Stapley continued to contact her by email. (l) On March 31, 2020, Ms. Stapley received an email from Mr. Stapley stating that he has “biblical rights” to have phone calls with his daughter and wanted Ms. Stapley’s new phone number. (m) On March 31, 2020, Mr. Stapley also sent the following email in which he apologized for threatening her, stated that he needed “a lot of help,” and begged for forgiveness. (n) Ms. Stapley is very concerned about her and A.’s safety due Mr. Stapley’s “current mental state” and the fact that there are presently no orders in place.
[7] As the materials have not been served, Mr. Stapley’s perspective is not known and the court has only the mother’s sworn evidence.
[8] On the materials before the court, I find that the matter is urgent with respect to the restraining order, residency of the child, and the father’s current access. On Ms. Stapley’s evidence, I am concerned about her safety and that of the child. The most fundamental concern of the family court is to keep children safe. I am therefore granting the restraining order on a temporary temporary without prejudice basis, until Mr. Stapley’s evidence can be put before the court and the matter heard with the benefit of both parties’ evidence. I am also ordering that the child continue to reside with Ms. Stapley until further court order, and that any access shall be supervised and in Ms. Stapley’s discretion. These orders are made on a temporary temporary basis, and are wholly without prejudice to both parties.
[9] I find, however, that neither custody nor child support are urgent at this time, subject to the determination of the judge hearing the return of this motion.
[10] Ms. Stapley has sought permission to serve Mr. Stapley by email. Although she has not specifically addressed this in her affidavit, exhibits thereto confirm Mr. Stapley’s current email address.
[11] Based on the foregoing, I make the following temporary temporary without prejudice Order:
(a) The child A. shall remain in the care of the Applicant until further Court Order; (b) Pending further court Order, the Respondent’s parenting time shall be supervised and in the Applicant’s discretion; (c) The Respondent may be served by email at: {email address removed for publication] except for any contempt motion which shall be served personally; (d) Pending further court order, there shall be a restraining order in the form provided to the court by counsel for the Applicant; (e) The Applicant shall serve all of the materials filed with the court for this motion, as well as a copy of this endorsement and the orders arising therefrom, on the Respondent by email forthwith; (f) The Respondent may serve and file a responding affidavit to this motion by email to the Applicant’s counsel at greitzel@shuhclinegrossman.com until April 23, 2020 at 5:00 p.m. (g) If no responding material is filed by the Respondent by April 23, 2020 at 5:00 pm, the matter will be returned to me in chambers and the orders made today will be made temporary. (h) If responding material is served and filed by the Respondent by April 23, 2020 at 5:00 pm, the Applicant shall have until April 27, 2020 at 2:00 pm to serve and file a Reply Affidavit. (i) Where documents are required to be filed with the court they shall be emailed to Kitchener.Superior.Court@ontario.ca. The parties’ name and file number shall be set out in the subject line. (j) The motion will be heard by teleconference on April 28, 2020 at 10:00 am. The Trial Coordinator will advise the parties by email of the call-in information for the teleconference.
[12] Mr. Stapley is strongly encouraged to consult with duty counsel, through Legal Aid Ontario. This can be arranged by telephone call to 519-578-4651.
[13] The orders arising from this endorsement have been signed.
Madsen J. DATE: April 16, 2020