Court File and Parties

Court File No.: FC-20-191-0000 Date: 2021-03-02 Superior Court of Justice - Ontario

Re: Laura Lynn Boyle, Applicant And: Edward Alan Stocker, Respondent

Before: Justice L. Sheard

Counsel: Rachel Eddy, for the Applicant Emma Brown, for the Respondent

Heard: February 25, 2021

Endorsement on Respondent’s Motion

Overview

[1] On December 3, 2020, on a motion brought without notice, the applicant, Laura Lynn Boyle (“Boyle”), was granted a restraining order (the “Restraining Order”) against the respondent, Edward Allen Stocker, (“Stocker”), Boyle’s common-law spouse of 20 years.

[2] Stocker brings this motion, originally returnable December 16, 2020, to set aside the Restraining Order. In support of his motion, Stocker swore an affidavit dated December 10, 2020. For various reasons, Stocker’s motion was not heard until February 25, 2021.

[3] Boyle and Stocker have been living separate and apart in the home they co-own at 1732 Cockshutt Rd., Waterford, ON (the “Home”) since June 2020. Each had retained lawyers to assist them with preparing a separation agreement.

[4] Stocker has been unemployed since September 2019 and lives off a CPP pension and other available government benefits. The effect of the Restraining Order was to prevent Stocker from returning to the Home. He has been forced to stay with various family members since December 4, 2020.

Grounds for the Restraining Order

[5] The Restraining Order was granted by Sweeny R.S.J., who had before him Boyle’s affidavit sworn November 30, 2020 (the “November Affidavit”) in which Boyle asserted that she had reasonable grounds to fear for her own safety and that the Restraining Order should be granted pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3.

[6] Each party has now filed two affidavits: Boyle’s - the November Affidavit and a second sworn February 2, 2021; Stocker’s – the December 10, 2020 affidavit and a second sworn February 19, 2021.

[7] In the November Affidavit, Boyle asserted that in early November 2020, after being served with Boyle’s draft separation agreement, Stocker began to exhibit “erratic and dangerous behaviours” towards Boyle. Boyle asserted that because of Stocker’s behaviour, she was becoming depressed, anxious, socially isolated and “living in constant fear”.

[8] Boyle set out as the basis for her fear in the November Affidavit as follows:

(a) Stocker had a history of abusing Boyle, which led to criminal charges in 2006 and 2008;

(b) in 2016, Stocker had been charged with a “firearms-related offence” and, although he had no firearms at the Home, Boyle alleged that Stocker was expressing an interest in replacing the firearms that had been confiscated;

(c) Boyle was vulnerable to serious illness if she caught COVID-19 and Stocker’s behaviour was allegedly putting her at risk. He was leaving the Home often to visit family members in Brantford and Barrie, both red zones, and in Brampton (on lock-down). Stocker fell ill in September 2020 and was tested for COVID-19. [Boyle’s affidavit is silent as to the outcome of the test, but in his responding affidavit, Stocker confirms that his test was negative]; and

(d) Boyle works full-time but Stocker has been unemployed since September 2019. On various occasions in November 2020, Boyle returned to the Home to discover damage to personal items – burns on a lampshade, broken Christmas decorations, broken china, a cracked glass pane in a hutch, and a cracked laptop screen. Of greater concern, on three occasions in November 2020, Boyle returned to the Home to find her pet rooster and a total of seven of her pet chickens dead. Boyle claims that Stocker is responsible for the property damage and for the death of the poultry. She notified the police on several occasions, but nothing has come of that.

[9] Prior to the above events, Boyle’s lawyer presented a draft separation agreement, in which Boyle proposes to buy out Stocker’s interest in the Home.

Events following the Restraining Order

[10] Stocker was provided with a copy of the Restraining Order and the November Affidavit on December 4, 2020. On December 10, 2020, Stocker swore an affidavit in support of this motion, originally returnable on December 16, 2020, to set aside the Restraining Order. In the event that the order was not granted, Stocker sought an order that Boyle pay him spousal support as well as occupation rent for her occupation of the Home.

[11] On January 6, 2021, Stocker texted Boyle asking for his CPP cheque, which had been mailed to the Home, but not provided to Stocker in the mail Boyle turned over to her lawyer for Stocker. This text was in breach of the Restraining Order.

[12] Boyle served a supplementary affidavit dated February 2, 2021, and Stocker has filed a further affidavit dated February 19, 2021.

Additional Affidavit Evidence

[13] In his affidavit dated December 10, 2020, Stocker asserts that Boyle obtained the Restraining Order on the basis of false facts and was using the Restraining Order as “a tactic to obtain exclusive possession” of the Home and not because she had any genuine fear of him.

[14] Stocker explains that he had been living at the Home intermittently since June 2020 because he and his brother have been sharing caregiving responsibility for their mother, who lives in Barrie, Ontario. Stocker’s mother is almost 88 years old, with mild dementia and uncontrolled diabetes. To assist with her care, Stocker has travelled to Barrie for periods of five to seven days at a time. Stocker and his brother provide care to their mother on alternate weeks.

[15] Stocker also responds to Boyle’s allegations of a history of spousal assault: he describes them as minor events that occurred over 12 years prior to Boyle’s motion. He complied with his probation, which included taking a Partner Assault Response course.

[16] Stocker also responds to Boyle’s allegations respecting the alleged firearms offence. He explains that in 2010, not 2016 as alleged by Boyle, he improperly stored a legally purchased long gun, which was discovered by Boyle’s adult son when visiting Boyle while Stocker was away. The long gun was confiscated, and Stocker was subject to a 10-year weapons prohibition. Stocker has not had any firearms at the Home since that event and says that he has no interest in obtaining a firearm.

[17] In her affidavit of February 2, 2021, Boyle acknowledges that she was mistaken when she asserted that the firearms offence was in 2016. She (now) believes that the offence took place between 2008 and 2010. Boyle also confirms that in the 20 years they lived together, she never saw Stocker use the long gun and was aware that he was subject to a 10-year weapons prohibition.

[18] Both in his affidavit of December 10, 2020 and his affidavit of February 19, 2021, Stocker denies that he killed the rooster or any of the chickens. He assumes that they likely died by reason of Boyle’s neglect. Stocker says that Boyle neglects all of her pets, including her cats and dog. He supported that claim by attaching a photograph of a pile of cat fur and skin piled beside a chair in the Home and a photograph of a dog missing patches of fur caused by fleas.

[19] Stocker says that over the years, they have had many chickens. At one time, they had as many as 42 hens, most of which died over one winter as a result of Boyle’s neglect. Stocker says that chickens have also been killed by the parties’ dog. Stocker states that starting in July 2020, both he and Boyle have been finding dead chickens on the property.

[20] In her affidavit of February 2, 2021, Boyle acknowledges that in 2014, their chickens perished over the winter after they began to moult. Boyle does not specifically deny ever finding a dead chicken on their property but that she has never found a dead bird whose injuries were limited to a broken neck.

[21] Boyle acknowledges that she had contacted the police on three occasions with respect to the dead poultry and damaged items. The police laid no charges and, aside from Boyle’s allegations and suspicions, which are strenuously denied by Stocker, there was no evidence that Stocker caused any property damage (with one minor and dated exception) or the deaths of the poultry.

[22] Stocker specifically denies that he damaged anything of Boyle’s with the exception that in July or August 2020, he burned a smiley face into a lampshade that he described as a “five dollar lamp from a yard sale with an a large, existing hole in it.”

[23] Stocker’s behaviour must be viewed in the context of how both parties have behaved towards each other. For example, in her reply affidavit of February 2, 2021, Boyle acknowledges that, as alleged by Stocker, she took Stocker’s coffeemaker from the Home, knowing that this appliance was important to him. Boyle also disabled the thermostat for the Home’s furnace to prevent Stocker from controlling the heat in the Home while Boyle was away at work. Boyle also disconnected the television satellite, another piece of equipment used by and important to Stocker.

[24] Similarly, while Boyle attaches her handwritten note to Stocker dated August 11, 2020 to the November Affidavit, with Stocker’s vulgar response at the bottom, Stocker attaches to his affidavit other notes written to him by Boyle, in which she demands that Stocker move out of the Home and “Leave now”, also stating that Stocker may only take his clothes and toiletries with him.

[25] Stocker makes allegations of Boyle’s “strange behaviour” towards him and describes how Boyle regularly shouts at him and follows him throughout the Home.

[26] In her February 2, 2021 affidavit, Boyle retreats from the allegation made in the November Affidavit that she was “sequestered to [her] bedroom” when Stocker was at the Home, asserting instead that Stocker made it impossible for Boyle to relax anywhere in the Home except in her bedroom. As an example, Boyle describes that when he left the Home, Stocker took his television remote with him, and she was ultimately required to buy her own television.

[27] Stocker specifically denies Boyle’s allegations that threats to her were made by his family members or that he disparaged Boyle while on the phone; forced Boyle to be sequestered in her bedroom; or intentionally inflated the fuel bills, as set out at para. 21 of the November Affidavit.

Allegation that Boyle’s Motion was a “Tactic” to Get Stocker out of the Home

[28] Stocker states that Boyle tried to have the police evict him from the Home in September 2020 when he told her he was ill and had been tested for COVID-19. Stocker states that when that tactic did not succeed, Boyle brought the December motion without notice as a way to eject Stocker from the Home and give her exclusive possession of it.

[29] In her affidavit of February 2, 2021, Boyle acknowledges that exclusive possession of the Home has been “a major point of contention since separation” and that Stocker has been unwilling to vacate the Home despite his absences for extended periods of time.

COVID-19

[30] Stocker acknowledges that he has travelled to Barrie to assist his elderly mother, but says that he has followed provincial directives relating to COVID-19, which he is fearful of contracting. When he became ill with flu-like symptoms in September 2020, he thought he was acting responsibly by leaving Boyle a note explaining that he was ill, contacting the local health unit, and obtaining a COVID-19 test. Boyle’s response to that note, which is not contradicted, was to contact the police and seek to have Stocker arrested. Stocker remained isolated in the Home for the recommended time. His COVID-19 test came back negative.

[31] When read together, the evidence of both parties shows that each leaves the Home – Boyle to attend work and Stocker to assist his mother and see family members. I accept that both parties fear contracting COVID-19 both for their own health reasons and because they both wish to support their elderly mothers and to see other family members. I do not accept Boyle’s claim that Stocker has acted irresponsibly vis-à-vis COVID-19 or has put Boyle’s health in any greater risk than she herself has done by her own choices.

Available Alternate Accommodation

[32] In his affidavits, Stocker acknowledges that, since the parties’ separation in June 2020, he has spent a great deal of time away from the Home. Despite that, Stocker says that he does not have easy access to alternate accommodations: his mother’s home is not a suitable place for him to live fulltime and he and his brother take turns caring for her so that neither becomes burned out, as their mother’s needs are high. Stocker says Boyle has other places to live: she has two sons in Simcoe and a daughter in Hamilton, all of whom have their own accommodation. He asserts that being ejected from the Home has put him in dire financial circumstances as he is unemployed, whereas Boyle is employed at an annual salary of $35,000.

[33] In her affidavit of February 2, 2021, Boyle disputes that she has other places to live and states that neither her mother nor her children are able to provide her and her dog and two cats with alternate interim accommodation.

[34] Based on the record before me, I accept that neither party has long-term alternate accommodation available to them at the moment.

Finances

[35] On this motion, the parties have not filed financial statements.

[36] In his affidavit of February 19, 2021, Stocker admits that he did breach the Restraining Order on January 6, 2021 when he sent a text message about to Boyle asserting that she had withheld his mail since December 3, 2020, which included his only source of income, his CPP cheques.

[37] In her February 2, 2021 affidavit, Boyle confirms Stocker’s evidence that he has been unemployed since September 2019. However, she asserts that Stocker has not made any efforts to secure gainful employment and has received government benefits, severance payment and investment dividends. Boyle further asserts that Stocker is able to work and that if he chooses to provide caregiving to his mother, Boyle should not be responsible for providing him with support.

[38] Boyle claims that since the beginning of December she has paid the Home’s mortgage, property taxes, property insurance, and utilities. Stocker disputes that and produced a statement from his bank account showing that the property taxes and mortgage are paid from his account and that, because Boyle did not pay the mortgage, Stocker’s chequing account went into overdraft.

[39] In the event that the Restraining Order is not set aside, Stocker claims monthly spousal support from Boyle. Based on his income of $20,000 and Boyle’s income of $35,000, Stocker calculates monthly support would be payable in the low range at $356, the mid-range at $416, and the high range at $475. Stocker also claims monthly occupation rent from Boyle in the amount of $1000.

[40] The parties jointly retained Don Proctor to prepare a valuation of the Home. A copy of the valuation dated February 1, 2021 was attached to Stocker’s affidavit of February 19, 2021. At the hearing, counsel for Boyle stated that she first saw the valuation upon being served with Stocker’s affidavit. As a result, on the motion, Boyle was unable to advise as to whether she will be able to obtain financing to allow her to buy out Stocker’s interest in the Home. Stocker states that he had already obtained pre-approval for a mortgage to fund his buy-out of Boyle’s interest in the Home.

[41] The division of the parties’ interest in the Home, whether by way of buy-out or third-party sale, appears to be the most significant issue to be resolved between these common law spouses.

The Law and Analysis

[42] On a motion brought without notice, the moving party is required to make “full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application: see r. 39.01(6), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[43] Pursuant to s. 46(1) of the Family Law Act, the court may make an interim or final restraining order if the applicant has reasonable grounds to fear for his or her own safety.

[44] Stocker submits that on this motion, the onus reverts to Boyle to meet the test under r. 46(1); the fact that the Restraining Order was issued does not reverse that onus.

[45] That principle can be found in Salehi v. Tawoosi, 2016 ONSC 540. In that case, Myers J. found that the applicant had applied, without notice, for a restraining order six months after the parties had begun to live separate and apart under the same roof. At para. 109 the court stated the following, in part:

Restraining orders granted without notice put a respondent under enormous bargaining pressure. The respondent was suddenly put out of his home and . . . had to hire a lawyer who was immediately under the gun of an existing order.

[46] Further, at para. 110, Myers J. stated that the following:

… Ex parte restraining orders should expire at the next hearing. In that way, the burden will properly remain on the applicant to establish her or his entitlement afresh on contested evidence rather than requiring the respondent to bear the burden of overcoming a subsisting order obtained without notice. If a case appears truly urgent, can a telephone call not be made to the respondent to have him or her come to court within a couple of hours or perhaps the next day? In some cases even that much notice may be unacceptably dangerous. But I am very dubious that this is so in more than a small minority of the cases in which restraining orders are sought without notice as a tactic.

[47] I agree with and adopt the reasoning of Myers J. above. For the purposes of this motion, I find that the burden remains on Boyle to establish her entitlement to a restraining order, as if the Restraining Order had not been granted. As set out more fully below, on the fuller record that is before this court, a very different picture emerges than that painted in the November Affidavit.

[48] Boyle relies upon Lawrence v. Bassett, 2015 ONSC 3707, 65 R.F.L. (7th) 207. In that case, the conduct sought to be restrained was the dissemination of statements, depictions, etc. related to the applicant. Kiteley J. noted that a restraining order made under s. 46 requires the applicant to “[have] reasonable grounds to fear for his or her own safety”. The fear must be reasonable, and may be entirely subjective, so long as it is legitimate, and includes concerns for psychological as well as physical safety.

[49] Kiteley J. granted a restraining order, noting that the threats made by the responding party were harassing and an attempt to limit the applicant’s ability to seek recourse from the court. Kiteley J. followed Callon v. Callon, 3 R.F.L. (5th) 28, in holding that the reason for a restraining order is to provide the litigants with “the opportunity to conduct the litigation in as reasoned an atmosphere as may be possible.” In the facts before her, Kiteley J. concluded that the threats made by the respondent constituted a “weapon” to deter the applicant from proceeding to court and jeopardized her right to seek legal recourse.

[50] I find Lawrence v. Bassett to be distinguishable on its facts.

[51] Stocker relies on Lazier v. Mackey, 2012 ONSC 3812, 26 R.F.L. (7th) 415. In that case, a central dispute was the division of property owned by common-law spouses. While the parties in Lazier had physically separated before a restraining order was sought, notwithstanding that difference, there are factual similarities to the case at bar. In Lazier, the moving party asserted that there was a historical spousal assault, resulting in a peace bond. The assault was dated, predating the request for a restraining order by five or six years. The facts here are similar: Boyle’s allegations that Stocker assaulted her are 12 years old and were addressed by a period of probation.

[52] In Lazier, the court denied the request for a restraining order, concluding that while there was evidence of poor behaviour, it was not of a sufficient degree to require intervention. At para. 107, Robertson J. stated the following:

A restraining order is not a remedy for bad manners, poor communication and suspicion. A restraining order is needed where parties are unable to restrain themselves and require the state to tell them how to behave.

[53] I agree.

[54] In this case, Boyle raises only suspicions that Stocker damaged her things or harmed the poultry; the police were called and took no action against Stocker. By contrast, Boyle admits that she took things belonging to Stocker and disabled equipment in the Home that they shared.

[55] At the least, Boyle’s conduct could be seen as provoking Stoker, and at worst, it could be characterized as abuse. In fairness, the behaviour of both parties demonstrates bad manners, poor communication and suspicion.

[56] Boyle made direct reference to Docherty v. Melo, 2016 ONSC 7579, 85 R.F.L. (7th) 57, also referenced in L.A.B. v. J.A.S, 2020 ONSC 3376, on which Stocker relies.

[57] In Docherty, as is the case here, the responding party asserted that the restraining order was sought in order to permit the moving party to a retain possession of the home. The court considered the applicable jurisprudence, and concluded that past acts must have some current relationship with the moving party’s present fears and must also be related to the respondent’s actions or words; the court must be able to connect or associate the respondent’s actions or words with the applicant’s fears: see Docherty, at para. 33.

[58] Applying those principles here, when all the evidence is considered, I question whether Boyle does have a present fear for her safety and whether she has met her onus under s. 46(1).

[59] Boyle’s second affidavit corrects her earlier assertion about the date of Stocker’s alleged firearms-related offence: it was in 2008 or 2010, not 2016. Also, Boyle confirms Stocker’s evidence that he does not own a weapon and has not brought one into the Home.

[60] Boyle’s assertion that Stocker’s has begun to exhibit “erratic and dangerous behaviours towards her” was significantly undermined by the evidence put forth by Stocker. He not only denies Boyle’s allegations, but puts forth alternate and plausible explanations for the death of the chickens and has shown evidence of the poor condition of Boyle’s cats and dog.

[61] When Stocker’s side of the story is considered, Boyle’s assertions appear to be only suspicions that were not taken seriously by the police, despite Boyle’s numerous reports.

[62] Stocker submits, and I accept, that it is proper to infer that the police concluded that there were no reasonable and probable grounds to believe that Stocker had committed an offence: see L.A.B. v. J.A.S, at para. 41.

A Different Picture on a Full Record

[63] Given the one-sided allegations made in the November Affidavit, it was reasonable for the motions judge to make the Restraining Order. However, with the benefit of Stocker’s affidavits and Boyle’s responding affidavit, it is far from clear that a restraining order is warranted.

[64] It is difficult to accept Boyle’s assertion that she brought her motion without notice out of fear of Stocker’s reaction to a restraining order which would have the effect of giving Boyle exclusive possession of the jointly-owned Home. I note that Boyle had been leaving notes to Stocker telling him to move out and dictating to him that he could take only his clothes and toiletries. That behaviour conflicts with Boyle’s assertion that she was afraid of how Stocker would react if she gave him advance notice of her motion. Boyle’s notes do not suggest that she feared Stocker but, rather, that she was aggressively trying to force him to leave the Home.

[65] Boyle’s own evidence puts into question that she has a legitimate or real fear for her safety at the hands of Stocker. For example, Boyle herself recounts an incident in 2018 in which she confronted Stocker about something he had allegedly said about Boyle, that was overheard by Boyle’s son. Boyle states that when she confronted Stocker, he took his mattresses and his television and left the Home for eight weeks. That reaction significantly conflicts with the suggestion that, if he had notice of the motion, Stocker would react in a way that would cause Boyle fear, as claimed in the November Affidavit.

[66] With the benefit of all the affidavit material, Boyle’s assertion that Stocker was irresponsible and put her at risk for COVID-19 also cannot be supported. Both parties have elderly mothers and family members with whom they wish to have safe contact during the pandemic.

[67] Boyle’s allegation that Stocker’s behaviour puts him and Boyle at risk of exposure to COVID-19, which, in part, justified the Restraining Order, is all but defeated when compared to Boyle’s behaviour: since April 2020, Boyle has been in regular contact with the general public through her employment at an in-person job in a retail cannabis store.

[68] I find that Stocker’s September 2020 note to Boyle telling her that he was unwell and that he had taken a COVID-19 test demonstrates that he was acting responsibly.

[69] Based on the full record before me, and except for defacing the lampshade, which Stocker admitted, I cannot reasonably conclude that Stocker is responsible for any of the property damage or poultry deaths as alleged by Boyle.

[70] I accept that the court should have as a goal that each party should be able to conduct the litigation in “as reasoned and atmosphere as may be possible”. [1] Depriving Stocker of his right to live in the Home that he co-owns would defeat that goal.

[71] I echo and adopt the words of Myers J. in Salehi, at para. 113: Boyle “has no reasonable grounds to fear for her safety… The parties do not need a restraining order to decrease their distress. They need a resolution, so that they can get on with their respective lives. That is something that only they can provide to each other. [2]

[72] Unlike Salehi, here no children are concerned. Based on the record before me, the division of the Home, and possibly spousal support, will likely be the only issues to be resolved. It is hoped that with an appraisal of the Home now in hand, the parties may take meaningful steps toward completing a separation agreement.

Disposition

[73] For the reasons set out above, the Restraining Order is hereby set aside.

Costs

[74] I would urge the parties to agree on costs but if they cannot do so, then costs submissions may be made as follows:

1. within 14 days of the date of the release of this decision, Stocker shall serve and file his written costs submissions, not to exceed 3 pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
2. Boyle shall serve and file her responding submissions of no more than 3 pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, within 7 days of the service upon her of Stocker’s costs submissions.

[75] If no submissions are received within 21 days of the date of the release of this decision, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

L. Sheard J. Date: March 2, 2021

Footnotes

[1] Para. (i), Boyle’s Statement of Law, filed on the ex parte motion.