Court File and Parties

COURT FILE NO.: F321/20 DATE: May 1, 2020

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Chelsea Slade, applicant AND: Mohamed Tabbakh, respondent

BEFORE: MITROW J.

COUNSEL: Chelsea Slade by teleconference Mohamed Tabbakh by teleconference

HEARD: April 30, 2020

Endorsement

[1] The applicant brings an urgent motion pursuant to the protocol in place as set out in the notice published on this court’s website on March 15, 2020. Pursuant to an order made April 22, 2020 by the triage judge, the motion was found to be presumptively urgent.

The Relief Sought on the Motion

[2] The applicant seeks a restraining order that the respondent have no contact with the applicant, that he not come within 300 metres of the applicant’s home or workplace and that the applicant have interim sole custody of the child and with the respondent to have reasonable access.

[3] In the relief sought on the motion, it appears that access exchanges would be an exception to any restraining order. The motion also sought an order for the respondent to contribute to “any/all costs involving the welfare” of the child.

[4] The parties’ child is approximately 18 months of age.

[5] The material filed in support of the applicant’s motion consisted of an affidavit and a form 35.1 affidavit, both sworn April 21, 2020.

[6] The respondent elected to file no material on the motion.

The Evidence

[7] In support of her request for a restraining order, the applicant cites s. 810 of the Criminal Code, R.S.C., 1985, c. C-46 as amended. In the current proceeding before the court, there is no jurisdiction to make an order under s. 810 of the Criminal Code for a “peace bond.”

[8] The applicant deposes that the respondent sent a “death threat video” to the applicant’s phone and that the threat was towards the applicant’s “significant other.” The applicant also deposes that the respondent has sent “harassing messages … on and off …” to the applicant.

[9] There is no evidence from the applicant as to when this alleged threat took place. There is no evidence as to whether the police were called. There is no evidence from the applicant’s partner, to whom the threat was allegedly directed. There are no details regarding the content of the video. There is no evidence as to the contents of the “harassing messages.” The applicant included some loose text messages with her documents but those text messages are not properly filed as evidence on the motion and I do not consider them.

[10] A restraining order may be granted under s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, the relevant portion of which provides as follows:

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:

1. 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.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[11] Similar provisions for a restraining order are contained in s. 46 of the Family Law Act, R.S.O. 1990, c. F.3.

[12] The granting of a restraining order subjects an individual, against whom the restraining order is made, to proceedings under the Criminal Code for any alleged breach of the restraining order.

[13] In Marshall v. Reid, 2018 ONSC 648, Kristjanson J. discussed the effect of a breach of a restraining order in para. 11:

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.

[14] Regarding the applicant’s claim for interim custody, the parties had signed a brief agreement dated February 18, 2020 in relation to the child. For the purpose of the applicant’s motion, the salient provisions in this agreement regarding the parenting plan are as follows:

(a) the parenting time is shared 50/50, with the child staying 3 days with the mother and 3 days with the father;

(b) the mother and the father will discuss any further changes in the child’s routine; and

(c) both parents are to make decisions together regarding the child.

[15] The applicant deposed that the respondent is abusing illegal substances and that he has admitted this to the applicant.

The Issue of Urgency

[16] I am satisfied, although marginally so, that there is an issue of urgency in relation to the claim for a restraining order.

[17] I find there is no urgency with respect to any other claims made; however, for reasons set out below, I do make a parenting order.

Discussion

A. Restraining Order

[18] Although the respondent filed no evidence on the motion, he did, in an email, set out briefly his position, which included his agreement to have no contact with the applicant except for emergency purposes. During the hearing of the motion, the respondent confirmed that he was agreeable to an order, which could be made as part of a parenting plan, providing for no contact between the parties except in emergencies or in relation to the child.

[19] During the motion, the applicant was asked whether she would accept a no contact provision being made as part of a parenting order rather than a formal restraining order. The applicant was content with such an order.

[20] Given the lack of sufficient detail relating to the applicant’s claim for a formal restraining order and also having regard to the agreement of the parties as discussed above, the applicant’s request for a restraining order is dismissed and, instead, as provided in the order below, the provisions limiting contact between the parties are made pursuant to the Children's Law Reform Act.

B. The Applicant’s Request for Interim Custody

[21] During the hearing of the motion, the applicant submitted that the parenting order should provide for each party to have the child for three days at a time. This is consistent with the written agreement between the parties and the respondent consents to same.

[22] Also, the applicant proposed that the next changeover of parenting should occur on May 2, at which time the applicant will pick up the child from the respondent’s residence. The respondent was content with that proposal.

[23] The applicant proposed that she would do all the driving and she would drop the child off and would pick the child up from the respondent’s residence, with the exception that she would deal with the respondent’s mother for the actual exchange of the child. The court was advised that the respondent resides with his mother. The respondent was content with that proposal.

[24] In relation to the proposal for interim sole custody, the respondent opposed that and his submission was that the court should make an order for interim joint custody.

[25] Although I do not find the issues regarding the parenting plan to be urgent, I do consider, and I find, that it is in the child’s best interests to make some parenting order on an interim basis as this may assist in de-escalating the potential for any conflict between the parties.

[26] I find no urgency that necessitates an order dealing with custody, especially considering the agreement signed by the parties.

[27] Accordingly, the order below incorporates the parenting time schedule and the provisions for pick up and exchange of the child and is consistent with the submissions of both parties made during the hearing of the motion.

C. Other Relief Claimed on the Motion

[28] The applicant’s request that the respondent contribute to costs involving the welfare of the child is dismissed. This is not an urgent matter. Further, and importantly, the applicant makes no claim for child support in her application.

Order

[29] For reasons set out above, I make the following temporary order:

1. The child shall be in the care of each party for three consecutive days at a time. The child shall be returned to the applicant’s care on May 2, 2020.

2. All exchanges shall take place at the residence of the respondent; the applicant shall be responsible for delivering the child to the respondent’s residence and picking the child up from the respondent’s residence.

3. The actual exchange of the child at the respondent’s residence shall be between the applicant and the respondent’s mother, Amal Homsi.

4. As an incident of custody and access pursuant to the Children's Law Reform Act, there shall be no contact or communication, direct or indirect, between the parties except in the event of an emergency or in relation to any issue regarding the child, including arrangements for exchanges of the child at the conclusion of either party’s parenting time with the child. All such communications between the parties shall be polite and respectful and shall take place only via telephone or via electronic means such as email or text messages.

5. This order is made pursuant to the Children's Law Reform Act.

6. All other claims made by the applicant in her motion are dismissed.

“Justice Victor Mitrow” Justice Victor Mitrow

Date: May 1, 2020