L.A.B. v. J.A.S., 2020 ONSC 3376

COURT FILE NO.: FS-16-88135-00 DATE: 2020-05-29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

L.A.B. Frances M. Wood, for the Applicant/Moving Party, L.A.B. Applicant/Moving Party

• and -

J.A.S. Not served and not appearing Respondent/Responding Party

HEARD: May 28, 2020, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] The Applicant seeks an order restraining the Respondent, J.A.S., from communicating with the Applicant, L.A.B. and the children, namely A.M.S., who is 17 years old; B.D.S., who is 14, and J.C.S., who is 13, directly or indirectly, except via counsel; and restraining him from coming within 300 metres of their residence, place of employment, place of education, or anywhere that they is known to be or likely to be, except for the purpose of attending supervised access at a supervised access facility pursuant to a court order or agreement, pursuant to the Children’s Law Reform Act section 35(1) or in the alternative pursuant to the Family Law Act section 46(1).

[2] The Applicant additionally seeks an Order suspending the access terms, specifically paragraphs 2, 5, 6, 11, 14, and 15, in the order of Justice Lemon dated April 20, 2018.

[3] At this time, the Superior Court of Justice’s regular operations is suspended due to the COVID-19 pandemic. The Local Administrative Judge has made a preliminary administrative determination that the request is Urgent and that the motion should proceed. That determination reserves the right to the judge hearing the motion to make a fresh determination as to whether the motion is urgent and should proceed.

[4] The following documents were electronically filed:

1. Notice of Motion in form 14 (without Notice) dated May 25, 2020, for a restraining order;
2. Affidavit of L.A.B. in form 14A (General) dated May 24, 2020 in support of the motion for restraining order, and the exhibits appended to the affidavit, including the Order of Justice Lemon dated April 20, 2018;
3. Motion to Change of L.A.B. in form 15 dated May 24, 2020;
4. Change of Information Form of L.A.B. in form 15A dated May 24, 2020;
5. Affidavit of L.A.B. in form 35.1 (in support of motion for custody or access);
6. CPIC Restraining Order Information Form of L.A.B. dated May 25, 2020;
7. Fee Waiver Request of L.A.B. dated May 24, 2020; and
8. Factum dated May 26, 2020, filed by L.A.B. in support of motion for restraining order.

BACKGROUND FACTS

[5] L.A.B. and J.A.S. separated in 2016. They have three children, a daughter, A.M.S., who is 17, and two sons, B.D.S., who is 14, and J.C.S., who is 13.

[6] Following litigation, during which the Office of the Children’s Lawyer was appointed to represent the children, the parties settled the issues of custody and access on terms whereby the children reside primarily with L.A.B. and J.A.S. exercises access on a two week rotating schedule, on week one, from Monday until Tuesday and from Friday until Monday, and on week two from Wednesday until Thursday.

[7] L.A.B. alleges a history of mostly unspecified abuse by J.A.S., which she says has recently escalated. She states that:

[8] On December 26, 2019, in the middle of the night, J.A.S. forced the two older children to leave the home despite the cold conditions, which required L.A.B. to go and pick them up. On the same day, J.A.S. told their daughter, A.M.S. that she was lucky he kept her around as she reminded him of her mother, the person he hates most in the world.

[9] On April 20, 2020, L.A.B. observed J.A.S. in his mother’s car, parked near her home, watching the home, before reversing into a side street. She states that J.A.S. had no reason to be near her home that day.

[10] On April 26, 2020, J.A.S. took A.M.S.’s phone and tried to download its contents to his own computer, until L.A.B. remotely stopped him from doing so. L.A.B. states that “There is some suggestion” that, in doing so, he was able to access passwords and other private information of both A.M.S. and L.A.B.

[11] On April 26, 2020, A.M.S. observed two notes on the wall of J.A.S.’s home. L.A.B. states that the first “sounded like a prayer to God” to forgive him for a big mistake he was about to make, and the second “sounded like a defence”, explaining that the ‘mistake’ was for the protection of the children. L.A.B. has not disclosed the wording of either note.

[12] The police did not charge J.A.S. with any of the above-mentioned actions. The police did charge him with historical assaults, based on L.A.B.’s allegations regarding events in 2012 and 2016.

[13] J.A.S. was released from jail under restrictions not to attend at L.A.B.’s home. L.A.B. says that he has continued to drive past, slowly, in the middle of the night, on more than one occasion.

[14] L.A.B. says that on May 7, 2020, her home security cameras captured a car of the same make, model, and colour of J.A.S.’s mother’s car drive past her home three times after midnight, slowing down as it passed. On the following night, the cameras captured J.A.S.’s personal vehicle drive past her house four times after midnight. On May 9, L.A.B. reported these incidents to the Peel Regional Police and sent them video recordings. She made a further report on May 13, 2020.

ISSUES

[15] The Court must determine the following issues:

a) Is there urgency to the Applicant’s motion? b) Is it likely that service of the Notice of Motion on J.A.S. will have serious consequences? c) If so, does the Applicant have reasonable grounds to fear for her own safety or that of children in her care, such as to justify the Court making a restraining order?

[16] The first two issues represent a threshold that must be met before the third is addressed. I therefore turn to address those two threshold issues.

Is there urgency to the motion?

[17] In order to establish urgency that would justify dispensing with notice of the motion or delaying it until after an order is made:

1. The concern must be immediate; that is, it must be one that cannot await resolution at a later date;
2. The concern must be serious, in the sense that it significantly affects the health or safety or economic well-being of the parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible, such as a spouse’s or child’s health, welfare, or dire financial circumstances, rather than theoretical;
4. The concern must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

Thomas v. Wohleber, 2020 ONSC 1965

Is it likely that service of a Notice of Motion will have serious consequences such that it should be dispensed with or delayed until after and Order is made?

[18] Where service of a Notice of Motion would probably have serious consequences, service can be dispensed with or delayed until after the making of the order. A motion can also be heard prior to a Case Conference where it is being made without notice.

Family Law Rules, Rules 14(12)(d) and 14(6)(e.2)

THE APPLICANT’S POSITION

[19] The Applicant submits that she has met each part of the above test. She says that a pattern of abusive behaviour has recently escalated to a level of immediate threat. She submits that her safety and that of the children are at stake and says that there is cogent evidence of specific behaviour by J.A.S. giving rise to a reasonable fear of danger to her immediate safety.

[20] The Applicant further submits that in light of J.A.S.’s threats, both express and veiled, and his refusal to comply with his bail conditions, it can reasonably be inferred that service of the Notice of Motion would likely have serious consequences.

EVIDENCE, ANALYSIS AND LAW

[21] For the reasons that follow, I find that the Applicant’s evidence does not satisfy the test of urgency or demonstrate that service of the Notice of Motion would likely have serious consequences.

[22] In the present case, the court, when determining urgency, and assessing the potential consequences of requiring the Applicant to serve notice of her motion on J.A.S. before hearing the motion, entails weighing the risk of potential harm to her from J.A.S. The court’s weighing of the risk for these purposes is different than the one the court uses when deciding whether to issue a restraining order. In the latter case, the court applies the analysis which this Court set out in Docherty v Melo, 2016 ONSC 7579, at paras. 29 to 41.

[23] The test that the Court applies when deciding whether to issue a restraining order is based on the complainant’s subjective fear of the person she seeks to restrain. When it is asked to issue a restraining order, the Court must determine whether there is a legitimate basis for the complainant’s fear. In making that determination, the Court applies a lower standard than reasonable and probable grounds the police need to believe that an offence has been committed before charging a person with an offence, or the reasonable prospect of a finding of guilt that the Crown needs before proceeding to prosecute a charge. It is also lower than the balance of probabilities that the civil court applies when deciding whether a wrongful act has been committed.

[24] The weighing of risk that the Court does when determining whether a motion is urgent, or in assessing the likely consequences of requiring the motion to be served before hearing it entails an objective, not a subjective, standard. Notice of a motion to restrain a person’s freedom is a principle of fundamental justice. The Court must be vigilant to avoid making unwarranted orders that would undermine it.

[25] There are a number of factors the Court must take into account in making its determination. The salience of the facts the Applicant relies on to establish the risk of harm to her based on J.A.S.’s past wrongdoing depends on the nature and seriousness of the wrongdoing, its proximity in time and circumstance to the present, and the strength of the evidence supporting it.

[26] Generally speaking, the less serious and the more remote the alleged wrongdoing was to the present time and circumstances, the less salient it is to the risk the Applicant now faces. Additionally, the stronger the evidence of the past wrongdoing, and the less ambiguous the harm it represented, the more salient it is the present risk.

[27] The Applicant relies on both historical and recent events in support of her argument that there is urgency, and that the consequences of serving notice of the motion may result in harm to her. I will examine the salience of each of these incidents with regard to the risk of harm to the Applicant.

[28] The Applicant does not allege that J.A.S. has a criminal record of any kind. The Applicant’s lawyer acknowledged that it would be reasonable for the Court to conclude that if he did have a record, the Applicant would have mentioned it in her affidavit.

[29] If J.A.S. had a record, especially for recent and serious offences of violence against the Applicant, this a factor the Court would consider in weighing the risk of harm to the Applicant. The absence of such a record tends to diminish the risk of likely harm to her.

[30] The Applicant has not alleged that J.A.S. suffers from drug or alcohol abuse, or mental illness of a kind that would suggest unstable mood or volatile personality, which might increase the likelihood of violent behavior. The absence of such features also tends to diminish the risk of likely harm to the Applicant.

[31] The Applicant says that she has made complaints against J.A.S. that caused the police to charge him with three historical offences of assault and sexual assault. J.A.S. has not been found guilty of any of those offences. In the criminal court, he is entitled to the presumption of innocence in relation to the charges. The Applicant has not provided the details of the past offences. The Court would need this information to determine how serious the offences were, how likely they are to have been committed, and how closely they are connected to the present circumstances.

[32] The Applicant states that the past offences took place in 2012 and in 2016, before the parties separated. The parties entered into partial Minutes of Settlement on April 20, 2018. The settlement gave J.A.S. substantial access to the children, with no supervision of either his access or the transfers of the children. I infer from this that in 2016, the Applicant did not have enough fear of J.A.S. as a result of offences he had committed earlier that same year or four years earlier to feel that he required supervision.

[33] The children are two years older now than they were in 2016. They are presumably better able now to protect themselves and to assert their preferences regarding access to their father. The evidence before me does not establish that the children want their access to their father restricted.

[34] The Applicant complains that on December 26, 2019, J.A.S. told A.M.S. that she was lucky he kept her around as she reminded him of her mother, whom he hates. That statement does not amount to a threat, as alleged by the Applicant.

[35] The Applicant states that on the same day, J.A.S. forced the two older children from their home. She does not say how he forced them out, that is, by physically removing them, or by telling them to leave, or by creating an situation that caused them to want to leave. She does not say how long they were outside the home, or how far they went before she returned them. It appears that the Applicant was aware of what was happening and that she was able to retrieve the children and return them home without harm to herself or to them.

[36] The Applicant does not give any details of the incident that would give the context of the incident or an explanation for it. The Court would need such information to determine whether the incident created a risk of harm to the Applicant or the children, or a legitimate basis for the fear the Applicant says she has of J.A.S. The spare description the Applicant gives of incident does not, in itself, and in the absence of some particulars, demonstrate a risk of harm that warrants dispensing with notice to J.A.S. of the motion to restrain him.

[37] The Applicant’s asserts that on April 20, 2020, she observed J.A.S. in his mother’s car, parked on her street, at a time when he did not need to be there. She does not say how far from her home he was, or how long he was there before backing into a side street and leaving.

[38] The Applicant states that her daughter, A.M.S. texted her on April 26, 2020, to tell her that she had lost her cell phone while at her father’s home. She had discovered that her phone was missing after she had put it down on the sofa next to her and gotten up to get some food. She said that her father had been sitting next to her before she got up, and that the following day, her 13-year-old brother reported that he saw their father with two cell phones when A.M.S. and her older brother were outside. J.A.S. denied taking the phone and insisted that she had simply lost. It.

[39] The Applicant alleges that on April 27, 2020, the contents of A.M.S.’s phone, which was linked to the Applicant’s computer, were being down-loaded onto a computer until the Applicant remotely disconnected the two and stopped the down-loading. The Applicant believes that J.A.S. had taken his daughter’s phone and later tried to down-load its contents. She was alarmed that he may have been able to access her own and her daughter’s passwords and other private information.

[40] The Applicant further states that A.M.S. told her that on April 26, 2020, when visiting her father, she observed two notes on the wall of J.A.S.’s home. The Applicant states, presumably based on what her daughter told her, that the first note “sounded like” a prayer to God to forgive him for a big mistake he was about to make, and that the second “sounded like” a defence, explaining that the ‘mistake’ was for the protection of the children. None of the children apparently photographed the notes with their cell-phones, and the Applicant does not have their actual wording.

[41] The information about the notes is so lacking in specificity or context, and the wording reported is so ambiguous as to be incapable of supporting a finding that it amounted to a threat, veiled or otherwise. The Applicant says that she reported the incidents of April 20 and 26, 2020, to the police and it appears that the police did not take any action. I infer from this that the police concluded that there were no reasonable and probable grounds to believe that J.A.S. had committed an offence. I also do not find that the Applicant’s allegations support a finding of urgency, or justify the Applicant’s fears of J.A.S.

[42] L.A.B. states that J.A.S. was released from jail under restrictions not to attend at L.A.B.’s home, and says that he has continued to drive past, slowly, in the middle of the night, on more than one occasion. She states that on April 20, 2020, she saw J.A.S. in his mother’s car on her street. She does not say how far he was from her home, or how long he was on the street before reversing into a side street.

[43] As noted above, the police did charge J.A.S. with historical offences dating from 2012 and 2016 based on the information the Applicant gave them when she attended to report the incidents that had taken place on April 20 and 26. The police apparently arrested J.A.S. on those offences.

[44] On May 1, 2020, J.A.S. was released on a Release Order with the following conditions:

1. Not to contact or communicate in any way directly or indirectly, by any physical, electronic, or other means, with the L.A.B. except pursuant to a family court order, through legal counsel, or through a mutually agreed to third party for arranging contact with children.
2. Not to be within 200 metres of any place where he knows L.A.B. to live, work, attend school, or frequent, or any place he knows her to be;
3. Not to attend within 200 metres of L.A.B.’s residence;
4. Not to possess any firearm, weapon, or ammunition, or apply for authorization, licence, or registration certificate for any weapon.

[45] The Release Order provides for the following consequences in the event any of the conditions were breached:

1. He would commit an offence under section 145 of the Criminal Code;
2. A warrant could be issued for his arrest pursuant to sections 513 and 512.3 of the Criminal Code and he may be liable to a fine or to imprisonment or both;
3. His release order may be cancelled, and he could be detained in custody pursuant to subsection 524(4) of the Criminal Code.

[46] J.A.S.’s Release Order continues to be in effect until his trial on the charge. The Court takes judicial notice of the fact that, owing to the COVID 19 restrictions on the Court’s operations, J.A.S.’s trial may be far in the future. Until it occurs, a restraining order of the kind that the Applicant seeks in the present motion would not be likely to add to the protection she derives from the Release Order in the criminal proceeding. The Applicant asserts that J.A.S. could apply for variations of his bail without notice to her. I find it highly speculative that the Crown or the Court would entertain such an application without consulting the Applicant.

[47] The Applicant says that she has put safety measures in place in conjunction with community support services. In particular, she says that she has installed cameras at her home. She says that on May 7, 2020, her home security cameras captured a white Nissan Rouge, which is the same make, model, and colour of J.A.S.’s mother's vehicle, drive past her home three times after midnight, slowing down as it passed. She has not offered details as to the traffic on her street at that hour, or the traffic signs or signals or other features that might cause a car to slow down in the area.

[48] The Applicant further states that after midnight on May 9, 2020, the cameras captured J.A.S.’s personal vehicle drive past her home four times. Later that day, and again on May 13, 2020, the Applicant reported these incidents to the Peel Police and sent them the video recordings. The police apparently did not believe that the Applicant’s allegations and the video recordings gave them reasonable and probable grounds to believe that J.A.S. had violated the terms of his bail. The Applicant has not submitted the video recordings to this Court and her allegations alone do not satisfy me that J.A.S. breached his bail, or that the observations she made disclose urgency, or a credible risk that serving notice of her motion on J.A.S. would have serious consequences.

[49] Because the Applicant has not met the threshold tests of urgency and of dispensing with notice of her motion, it is unnecessary for the Court to address fully the third issue of whether the test has been met for issuing a restraining order.

CONCLUSION AND ORDER

[50] For the foregoing reasons, the Applicant’s motion will be dismissed, without prejudice to her right to make her motion on notice to the Respondent. If the Applicant proceeds with the motion while the COVID 19 restrictions continue in place at that time, it will be for Local Administrative Judge to determine whether the motion is sufficiently urgent to justify dispensing with a Case Conference and holding a hearing before the resumption of normal court operations.

[51] An Order will therefore issue in the following terms:

1. The Applicant’s ex parte motion for restraining order and an order suspending the Order of Justice Lemon dated April 20, 2018, is dismissed, without prejudice to her right to make the said motion on notice to the Respondent.
2. The Respondent J.A.S. may be served with the motion materials in connection with the motion for restraining order and the Motion to Change materials for the within proceeding via e-mail to: warofmylife@hotmail.ca and via courier to 2368 Gareth Road, Mississauga, Ontario.
3. The order of Justice Lemon dated April 20, 2018, shall remain in effect until further order of this court.

Price J.

Released: May 29, 2020