Court File and Parties

Court File No.: F133/21 Date: 2021-03-17 Superior Court of Justice – Ontario Family Court

Re: Jonathan William Stephens, applicant And: Susan Marie Corring, Christopher Lee Sommerville, respondents

Before: Mitrow J.

Counsel: Eric M. Vallillee for the applicant Salim J. Khot for the respondent, Susan Marie Corring Christopher Lee Sommerville, self-represented

Heard: March 3, 2021

Endorsement

A) Introduction

[1] This is the applicant’s motion. The sole remaining issue is the applicant’s claim for an interim restraining order against the respondent, Christopher Lee Sommerville (“Mr. Sommerville”), pursuant to s. 35 of the Children’s Law Reform Act (“the Act”).

[2] The applicant and the respondent, Susan Marie Corring (“the mother”), are the father and mother of two children, ages three and four. The younger child is their son and the older child is their daughter.

[3] The scope of the interim restraining order sought by the applicant is to prohibit Mr. Sommerville from having any contact or communication directly or indirectly with the applicant and both children, and from coming within 500 metres of various locations as specified in the motion which include the children’s and the applicant’s residences, the children’s school or daycare and the applicant’s place of employment.

[4] The applicant initially sought the restraining order on an ex parte basis. Henderson J. was not convinced that the matter should proceed ex parte and dismissed the motion without prejudice to having the motion brought back on after the motion was served.

[5] The applicant complied with the requirement to serve both respondents and the applicant’s motion came before me on March 3, 2021.

[6] Both respondents appeared; the mother filed a responding affidavit, and while Mr. Sommerville filed no material, he elected to proceed to argue the motion and did not wish an adjournment to file material.

[7] The applicant and the mother, at the outset of the return of the motion, advised the court that they had reached an agreement for an interim order as follows between themselves:

a) that the mother shall not allow the children to have any contact with Mr. Sommerville, and the mother shall not allow Mr. Sommerville to be in her home when the children are there; and

b) the applicant and the mother shall not consume alcohol or illicit drugs prior to, or during, their respective parenting time with the two children.

[8] That interim order, as sought, was made on March 3, 2021 following which the applicant’s motion for a restraining order against Mr. Sommerville was argued. The mother, in essence, took no position on the issue of the restraining order.

[9] For reasons that follow, the applicant’s request for a restraining order against the respondent, Mr. Sommerville, is dismissed, and instead an order is made pursuant to s. 28(1)(c)(i) of the Act providing that Mr. Sommerville shall have no contact with either the children or the applicant.

B) Background

[10] The applicant and the mother commenced cohabitation in early 2016 and separated in May 2018. Since separation, the children have resided in the mother’s primary care.

[11] The applicant deposed in his initial affidavit filed in support of his ex parte motion: that Mr. Sommerville, the mother’s current boyfriend, was released from jail in 2020, and that he has since moved in with the mother and the children; that he “appears” to be heavily involved in drug use and drug-trading activity; that he has a lengthy criminal record; and that he “appears” to have ties to criminal organizations and illegal gangs.

[12] The applicant further deposes that his children have told him recently that Mr. Sommerville has been touching their genitals at night while they are in bed.

[13] One of the applicant’s reasons for bringing his motion initially ex parte was his belief that service of the material would “likely cause” Mr. Sommerville to lash out at the applicant and the children, possibly violently.

[14] However, at the hearing of the motion, there was no evidence before the court that service of the motion material on Mr. Sommerville had caused him to act in an inappropriate or vengeful manner towards the applicant or the children.

[15] In support of the motion, the applicant included video files posted by Mr. Sommerville that the applicant claims are publicly accessible. While it is evident that the words spoken on the videos are laden with profanity and sexually explicit language, it is also apparent that some of the videos are words spoken by Mr. Sommerville in the context of a rap song. In one of those videos, Mr. Sommerville is “singing” the rap song while driving a car. In her affidavit, the mother deposes that it is her understanding that Mr. Sommerville is a “rapper/entertainer”.

[16] The applicant did obtain some documents from the criminal court relating to Mr. Sommerville’s convictions. It is noted that during the hearing of the motion, that Mr. Sommerville in his submissions did not deny that he has a criminal record.

[17] Mr. Sommerville was not opposed to obtaining and providing a copy of his criminal record. The order below requires Mr. Sommerville to serve and file a form 35.1 affidavit and a copy of his criminal record.

[18] Regarding the allegations of sexual abuse, the applicant deposed in his initial affidavit filed on the ex parte motion that on November 1, 2020 that his 4-year-old daughter told the applicant that Mr. Sommerville came in her room and “kissed her all over”.

[19] The next day on November 2, 2020, the applicant “gently” asked his daughter about what she had said the night before. According to the applicant, his daughter repeated what she had told the applicant the night before.

[20] While speaking to his daughter on November 2, 2020, the applicant’s evidence is that his son, who had apparently overheard the applicant’s conversation with his daughter, told the applicant that Mr. Sommerville “goes into his room and touches his penis sometimes”. The applicant’s son, at this point, was several weeks away from his third birthday.

[21] The applicant deposes that he has attempted to discuss these allegations with the mother, but that the mother has refused to engage in any discussion with the applicant and has ignored his concerns.

[22] The applicant next called the police and reported the children’s disclosure. Later during the evening of November 2, 2020 while putting his son to bed, the applicant deposes that his son told him that Mr. Sommerville “touches his penis all the time”, that he does it “under his pants” and “under his underwear”.

[23] The applicant took both children to the police station on November 3, 2020. The applicant was accompanied by his mother. While waiting in the lobby, the applicant deposes that his daughter told him that Mr. Sommerville had touched her vagina.

[24] A police detective and a child protection worker from the Children’s Aid Society of London and Middlesex (“the Society”) met the applicant, his mother and the children in the lobby. The applicant’s evidence is that the police detective and child protection worker spoke privately with his daughter “only for a few minutes”; the detective and child protection worker did not speak to the applicant’s son, as the applicant was advised that his son was too young. The applicant claims that the detective and child protection worker told the applicant “there’s nothing to worry about”.

[25] It is the applicant’s opinion that neither the police nor the Society have investigated the allegations thoroughly enough.

[26] In her responding affidavit, the mother denies that Mr. Sommerville lives with her. She claims that she has been forthright with the applicant about Mr. Sommerville’s criminal charges and incarceration.

[27] The mother denies having any knowledge that the children have been sexually abused by Mr. Sommerville.

[28] The mother responds by way of denial to allegations of drug use and alcohol abuse as alleged by the applicant. In turn, the mother alleges that when the applicant called her on November 1, 2020, that the applicant sounded “completely intoxicated”, that she could not understand completely what the applicant was saying, and that the applicant was using profane language, referring to her in vulgar terms and allegedly threatening that he was going to kill both her and Mr. Sommerville.

[29] It is also the mother’s evidence that her son told her that the applicant coached the children on what to say, and that the children disclosed to the mother that they had heard the applicant’s threats to kill both her and Mr. Sommerville.

[30] The applicant’s mother has filed an affidavit confirming that she attended with the applicant and both children at the police station. During the drive to the police station, the applicant’s mother deposes that prior to arrival, that her grandson quietly said that Mr. Sommerville had touched his penis. This is the first time that the applicant’s mother had personally heard either child make a disclosure regarding sexual abuse.

[31] The applicant’s mother corroborates what the applicant was told at the police station after the applicant’s daughter was interviewed, and that the applicant’s son was said to be too young to be interviewed.

[32] On the way home from the police station, the applicant’s mother deposes that the applicant’s daughter disclosed that Mr. Sommerville had only touched her vagina once. Further the children, since November 2020, have continued to report to the applicant’s mother that Mr. Sommerville is sexually abusing them, and the applicant’s mother has contacted the police and the Society regarding these additional allegations.

[33] In an affidavit sworn February 10, 2021, the applicant deposed that his son disclosed to him “two weekends ago” that Mr. Sommerville touches his penis at night while the mother is in bed watching television shows, and also that Mr. Sommerville touches his penis all the time. The applicant does not explain why this specific additional disclosure was not included in his first affidavit sworn February 4, 2021 filed on the ex parte motion, as this disclosure would have predated that first affidavit.

[34] The applicant adds that on the day that he signed his first affidavit, that a new Society child protection worker informed the applicant that his concerns now would be investigated and that he should “go to court” about this.

[35] In his reply affidavit sworn March 1, 2021, the applicant denies generally the allegations made against him by the mother. The applicant reiterates his concerns that the mother has not been honest with the court. The applicant refers to the mother’s affidavit that Mr. Sommerville does not even stay over at her residence when the children are there (para. 9 of the mother’s affidavit).

[36] The applicant includes as an exhibit a Facebook message from Mr. Sommerville in June 2020 which confirms that Mr. Sommerville was tending to the applicant’s daughter at night when she was crying. The applicant suggests that the mother cannot be trusted to report accurately whether Mr. Sommerville was at her residence while the children are there.

C) Discussion

[37] The court is authorized to make a restraining order pursuant to s. 35(1) of the Act:

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. 2009, c. 11, s. 15.

[38] The applicant relies on McCall v. Res, 2013 ONCJ 25, where there is a helpful discussion as to the necessary evidence to justify a restraining order. In paras. 29-31, the court states (with any emphasis being in the original):

29 Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:

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. 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.

30 In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

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 that 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.

31 What I take from these cases is:

• The fear must be reasonable
• The fear may be entirely subjective so long as it is legitimate
• The fear may be equally for psychological safety, as well as for physical safety

[39] An underlying principle is that a person’s fear for his or her safety or the safety of a child, must be related to a respondent’s actions or words.

[40] The words spoken by Mr. Sommerville, particularly in some of the video clips where he is “rapping”, are insufficient to justify a restraining order against either the applicant or the children. Also, there is little to no evidence of communications or conduct by Mr. Sommerville towards the applicant.

[41] While Mr. Sommerville does have a criminal record, the evidence is not complete as to what that criminal record consists of; and to the extent that there is proof of a criminal record, that evidence does not justify the imposition of a restraining order with respect to either the applicant or the children. The applicant offers little evidence to substantiate his claims that Mr. Sommerville has ties with criminal organizations and illegal gangs.

[42] In relation to the allegations by the applicant as to sexual abuse of the children, the evidence consists of statements made by the children to the applicant and his mother. It is not known what the applicant’s daughter said during her interview at the police station. It is known that no action at that time was taken by the police or the Society as a result of the interview with the applicant’s daughter and the information received from the applicant and his mother.

[43] The best evidence before the court is that an investigation by the Society is ongoing.

[44] Considering the limited evidentiary record, and the conflicting evidence from the mother as to what the children have said to her about the applicant’s conduct, it is beyond the scope of this motion for the court to make any findings as to whether sexual abuse has or has not occurred. On this motion it is necessary, and in the children’s best interests, to make an order that protects the children from any potential risk of harm, including while the Society investigation is ongoing.

[45] I take into account that an order has been made prohibiting the mother from allowing the children to have any contact with Mr. Sommerville.

[46] The applicant submits that a restraining order is necessary because the mother cannot be trusted to abide by the order made on March 3, 2021 and that Mr. Sommerville will not respect that order. I am unable to accept that submission.

[47] The submission is grounded largely on speculation. I am not satisfied on the evidentiary record before the court, including the order made on March 3, 2021, that the applicant has reasonable grounds to fear for his own safety or the children’s safety.

[48] I do find that it is in the children’s best interests to make a separate order pursuant to s. 28(1)(c)(i) that Mr. Sommerville shall not contact directly or indirectly the children or the applicant. Section 28(1)(c)(i) provides as follows:

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child

[49] In relation to both children, this order will complement the interim order made on March 3, 2021 regarding the mother’s obligation. Also, I find that it is in the children’s best interests to preclude Mr. Sommerville from initiating any contact with the applicant.

D) Order

[50] I make the following interim order:

1. The applicant’s request for a restraining order against the respondent, Mr. Sommerville, is dismissed.

2. Pursuant to s. 28(1)(c)(i) of the Children’s Law Reform Act, the respondent, Mr. Sommerville, shall not contact, directly or indirectly, the applicant and both children.

3. Within 21 days, the respondent, Mr. Sommerville, shall serve and file a fully completed form 35.1 affidavit, and he shall forthwith request a police records check, and he shall provide evidence in his form 35.1 affidavit that he has requested the police records check; and he shall serve and file a copy of his police records check immediately upon receipt of same.

4. The costs of the applicant’s motion are reserved to the judge who makes an order that finally disposes of all issues in this case.

“Justice Victor Mitrow” Justice Victor Mitrow Date: March 17, 2021