COURT FILE NO.: FC356/20
DATE: August 10, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: P.A.J.H. (sometimes known as P.M.), applicant
AND:
M.K.H., respondent
BEFORE: MITROW J.
COUNSEL: P.A.J.H. in person
Stephanie Ouellette for the respondent
HEARD: August 5, 2021
ENDORSEMENT
INTRODUCTION
[1] The remaining portions of the respondent’s form 14B ex parte motion were argued. The respondent sought an order requiring all of the applicant’s parenting time to be supervised and a police assistance order.
[2] The applicant, P.A.J.H., also known as P.M. (“the father”), and the respondent, M.K.H. (“the mother”), are the parents of J., born in 2017.
[3] For reasons that follow, the father’s parenting time is continued but on a reduced basis, various additional orders are made and the motion is adjourned back before me as set out in the order.
THE INTERIM ORDER OF TOBIN J. DATED MAY 19, 2020
[4] The interim order of Tobin J. dated May 19, 2020 included provisions that the child reside in the primary care of the mother and that the father shall have weekend access from 5 p.m. Friday to 5 p.m. Sunday, every weekend, except the first full weekend each month when the child shall be with the mother. Those orders were made on an interim without prejudice basis. That order is the current existing interim order that the mother seeks to vary.
[5] Also, when the matter was before Tobin J. in May 2020, the mother had alleged that the father was overholding the child and Tobin J.’s order included a police assistance order that expired June 30, 2020.
THE EX PARTE ORDERS MADE BY TOBIN J. ON JULY 8, 2021
[6] On July 8, 2021, Tobin J. heard the mother’s ex parte motion. The motion was based on the mother’s allegations describing the father’s recent threats and harassment. The ex parte motion sought a number of orders, including supervised parenting time for the father, police enforcement and a restraining order containing various provisions, including not attending within 200 metres of the mother’s place of residence, place of employment or the child’s school or daycare.
[7] Tobin J. provided written reasons dated July 8, 2021. He made an ex parte restraining order and also made a further order dealing with other relief under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “companion order”).
[8] Both orders of Tobin J. have been signed and issued and both orders contain errors that shall be rectified as set out in these reasons.
[9] Pursuant to r. 25(11)(b)(i.1), a restraining order shall be prepared by the clerk for signature.
[10] The restraining order signed by the clerk used form 25F, which is not the correct form. That form is used when a restraining order is made on notice to the responding party. The proper form that should have been used was form 25G, which is the correct form of restraining order made without notice.
[11] Further, the restraining order as signed and issued is dated July 7, 2021, rather than the correct date of July 8, 2021.
[12] The text of the restraining order provides that the restraining order was made pursuant to s. 35 of the Children's Law Reform Act and s. 46 of the Family Law Act, R.S.O. 1990, c. F.3. However, the respondent’s form 14B motion in support of the restraining order was made pursuant only to s. 35 of the Children's Law Reform Act. Therefore, there should be no reference to s. 46 of the Family Law Act.
[13] Next, a number of Tobin J.’s provisions, as set out in his endorsement, that were to be included in the ex parte restraining order were not included in the restraining order, but rather were included in the companion order. Finally, the restraining order contains provisions that were not ordered by Tobin J.
[14] On page 3 of the endorsement, under the heading “Restraining Order,” Tobin J. sets out what he is ordering.
[15] The following provisions should have been, but were not, included in the restraining order as signed and issued:
(a) the provision that the applicant is also restrained from communicating with the child’s daycare provider about matters pertaining to the respondent;
(b) the provision that the applicant is restrained from posting anything about the respondent in print or on social media; and
(c) the provision that the applicant shall not disparage the respondent to the child, in front of the child or allow third parties to do so.
[16] Those aforesaid provisions instead were included incorrectly in the companion order.
[17] The signed and issued restraining order also restrains the respondent from coming within 200 metres of the child’s daycare or school. Tobin J.’s endorsement contains no such order.
[18] Paragraphs 6, 7, 8 and 9 of the companion order are those portions of Tobin J.’s endorsement that relate to the restraining order. Paragraphs 6, 7, 8 and 9 shall be removed from the companion order.
[19] The restraining order made by Tobin J. shall be dated July 8, 2021 and shall be issued in form 25G. The exact terms of the restraining order are as specified in the endorsement of Tobin J. on page 3 under the heading “Restraining Order.”
[20] In relation to the form 25G order, paragraph 5 of the form shall provide that the motion dated July 5, 2021 and the respondent’s affidavit sworn July 5, 2021 shall be served immediately on the applicant by special service.
[21] In paragraph 4 of the form 25G order, it shall provide that the matter is adjourned to July 21, 2021 at 10:30 a.m. On page 2 of the form 25G order, in the notice provision to the applicant, the date for service of documents by the applicant shall be shown as July 16, 2021.
[22] In relation to the signed and issued form 25F restraining order, that order should be terminated to avoid any further confusion.
[23] The order terminating the form 25G restraining order shall be in form 25H and that form 25H order shall state only as follows:
“This court orders that the restraining order made by Justice Tobin dated July 7, 2021 shall be terminated effective immediately for the following reasons:
(a) the order was signed by the clerk in form 25F rather than form 25G as required;
(b)the order was incorrectly dated July 7, 2021 rather than July 8, 2021, which is the date the order was made; and
(c) the terms and provisions of the restraining order do not accurately reflect the actual restraining order made by Justice Tobin.”
[24] I should indicate that, during argument, none of the aforesaid discrepancies between Tobin J.’s endorsement and the issued and signed orders were drawn to the court’s attention.
DISCUSSION
A. The Material Filed on the Motion
[25] The mother relied on her affidavit and form 35.1 affidavit, both sworn July 5, 2021, and both of which were before Tobin J. on the ex parte motion.
[26] As part of his orders, Tobin J. ordered the motion to be returnable July 21, 2021. At that time, the father attended but requested an adjournment to file material. This adjournment was granted and the motion was ordered to proceed on August 5, 2021 peremptory on the father.
[27] On the hearing of the motion before me, the father advised that he wished to proceed to argue the motion, even though he had filed no material. The father was given an opportunity to speak to duty counsel, Ms. Barrington, prior to the motion proceeding. There was no adjournment request made.
B. The Mother’s Evidence
[28] The gist of the mother’s evidence is that, recently, she has been subjected to harassment and verbal abuse by the father, including being subjected to baseless allegations that the mother is soliciting herself on prostitution websites, which the mother denies.
[29] The father refers to the mother as “L.,” which is a name the father states that the mother uses on websites, also completely denied by the mother. The mother has withheld her current address from the father because she is fearful of him given his escalating behaviour.
[30] The father has engaged in electronic communications with the mother and her counsel, threatening to call police and tell them that the mother is planning to leave the country, which the mother deposes is a baseless allegation.
[31] The father has threatened to hire a private investigator to find out where the mother resides. The father has harassed the mother’s daycare provider by contacting her on frequent occasions, at times almost on a daily basis. The father has called the mother’s daycare provider names, such as “Chicki.”
[32] The father has threatened to contact media organizations to make false allegations about the mother. His emails have contained statements about court orders in relation to his parenting time that were never made. Part of the relief sought before Tobin J., on the ex parte motion, was a police assistance order, which was granted with a termination date of July 16, 2021.
[33] It is the mother’s evidence that she cannot have an online presence because the father stalks her and creates havoc in her personal life, including spreading lies over social media. It is noted that the restraining order specifically proscribed this behaviour.
[34] The mother complains that the child is difficult to manage after he returns from the father’s residence and that the child uses foul language.
[35] The mother deposes that she is stressed and exhausted and that the barrage of harassment and threats are affecting her ability to parent.
C. Legislation
[36] The Children's Law Reform Act defines “family violence” in s. 18(1) as follows:
… any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.
[37] Section 18(2) provides:
“Family violence”
18(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
[38] In considering family violence as one of the factors in making a determination of the child’s best interests, s. 24(3)(j) provides:
Factors
(3) Factors related to the circumstances of a child include,
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; …
[39] In considering the impact of family violence, s. 24(4) provides:
Factors relating to family violence
24(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.
D. Conclusion
[40] The mother acknowledged that compelling evidence is required for an interim variation of an interim order in relation to a parenting order. I concur with this submission: see, for example, Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), at para. 26.
[41] In the present case, I also take into account that the existing interim parenting order sought to be varied by the mother has been made on a without prejudice basis.
[42] I find that the father’s threats and harassment are frequent and have taken an emotional toll on the mother. The father’s conduct constitutes family violence.
[43] The mother’s submission is that the father should have supervised access at Merrymount – Family Support and Crisis Centre. However, the mother provides the court with no evidence as to the wait time for Merrymount or how frequent the supervised access can be at Merrymount.
[44] Also noteworthy is that there is no evidence before the court as to what has transpired in the approximate four weeks between the date of the two ex parte orders made by Tobin J. and the date that the balance of the motion was argued.
[45] The reality is that Tobin J.’s restraining order was directed squarely at restraining the father from engaging in the conduct complained of by the mother. The restraining order further prohibited the father from contacting or communicating directly with the mother and from coming within 200 metres of the mother’s residence or her place of employment.
[46] It was acknowledged during the hearing of the motion that there was no evidence that the father posted anything about the mother in print or social media, which was part of the conduct that the father was restrained from engaging in pursuant to Tobin J.’s endorsement.
[47] In addition, there was no evidence on the hearing of the motion that any of the provisions of Tobin J.’s orders had been breached.
[48] The fact that the restraining order was made, and the scope of the restraining order, should make clear to the father that his behaviour will not be tolerated by the court. A failure to comply with a restraining order constitutes a criminal offence.
[49] Before considering an order as restrictive as the mother’s request for supervised parenting time, it is best to give the father some opportunity to demonstrate that he is able to ameliorate his conduct.
[50] I find that it is in the child’s best interests to continue the father’s parenting time but in a reduced amount to allow the father to demonstrate that he can conduct himself in a more appropriate manner and not engage in threats or harassment. The mother’s request at this time to order supervised parenting time is, in my view, excessive and not in the child’s best interests. Although the father filed no evidence, it was quite apparent during the father’s submissions that the father loves the child and his parenting time with the child.
[51] When the motion returns before me, as ordered below, the father will need to demonstrate that he has complied fully with all orders that have been made if he wishes to have his parenting time reinstated in full. Conversely, if the mother demonstrates that the father has not been compliant, then the court will need to consider the appropriate order to meet the child’s best interests, including supervision of the father’s parenting time.
[52] The father has continued to engage in overholding the child. It is appropriate to include a police assistance order containing an expiry date as set out in the order below.
[53] The father’s behaviour as a whole justifies for now an order prohibiting the father from attending at the child’s school or daycare. That order is included in the order below as an incident of the father’s parenting time.
[54] It is in the child’s best interests for now for the mother to have decision-making responsibility regarding the child’s education, as the child is starting school in September 2021. Although that relief was not claimed specifically in the mother’s motion, it was requested in her affidavit at paragraph 32.
[55] As a result of the order below, which now prohibits the father from attending at the child’s school or daycare, and given the existing restraining order prohibiting the father from contacting or communicating with the mother directly or indirectly, it is necessary to have some specific provisions in relation to access exchanges and same are detailed in the order below.
ORDER
[56] I make the following interim order:
Effective immediately, the father shall have parenting time with the child on an interim basis on alternating weekends from 5 p.m. Friday to 5 p.m. Sunday, starting Friday, August 13, 2021.
Paragraphs 3 and 5 of the interim order of Tobin J. dated May 19, 2020 are vacated.
The father shall not attend within 50 metres of the child’s school or daycare. This order is made pursuant to s. 28(1)(b) of the Children's Law Reform Act as an incident of the father’s parenting time.
The clerk forthwith shall:
(a) sign and issue a restraining order of Tobin J. dated July 8, 2021 in form 25G and the form and content of that order shall be consistent with these reasons; this order shall contain the following paragraph: “This order replaces and amends the incorrectly signed and issued restraining order of Tobin J. dated July 7, 2021, in form 25F.”
(b) arrange for an enforcement officer to serve the applicant by special service with the form 25G restraining order; and
(c) sign and issue an order in form 25H, in the form and content as specified in these reasons, terminating the form 25F restraining order of Tobin J. incorrectly dated July 7, 2021.
The mother forthwith shall prepare an amended order of Tobin J. dated July 8, 2021 (dealing with additional matters pursuant to the Children's Law Reform Act) in the form and content which is consistent with and as specified in these reasons and this order shall be signed and issued forthwith by the clerk. The requirement of the father to approve a draft copy of this order is dispensed with.
For the purpose of enforcing the parenting time provisions contained in this order and the order of Tobin J. dated May 19, 2020, the London Police Service, the Woodstock Police Service, the Ontario Provincial Police and any other police force to whose attention these orders have been brought shall locate, apprehend and deliver the child to the mother or a person authorized by the mother.
For the purpose of locating and apprehending the child in accordance with this order and the order of Tobin J. dated May 19, 2020, any of the sheriff or police officers may enter and search any place where they have reasonable and probable grounds for believing that the child may be, with such assistance and force as are reasonable in the circumstances and such entry and search may be made at any time.
The sheriff and police officers shall do all things reasonably able to be done to locate, apprehend and deliver the said child in accordance with this order.
Paragraphs 6, 7 and 8 comprising the police assistance provisions of this order shall expire on December 31, 2021.
The exchange of the child shall occur as follows:
(a) at a location agreed to by the parties, or as directed by the mother failing agreement;
(b) the father may elect to have another person attend in his stead at the exchange, so long as that person has been approved in advance by the mother in writing;
(c) if the father elects to attend at the exchange, then the mother is at liberty to delegate a responsible adult known to the child to be present in her stead at the exchange and the mother shall provide in advance written notice to the father as to the name of that person; and
(d) each party immediately shall complete all intake forms for supervised access exchanges at Merrymount – Family Support and Crisis Centre and as soon as Merrymount is able to accommodate the parents, then all further access exchanges shall occur at Merrymount – Family Support and Crisis Centre.
Any communication between the parents, as required by this order, shall be between the father and the mother’s counsel.
The mother’s motion is adjourned before me at 8:45 a.m. October 12, 2021. Each party may serve and file by October 5, 2021 one additional affidavit, the content of which is restricted to any relevant occurrence subsequent to the date of this order and the availability of supervised access facilities. Each affidavit shall be limited to three typed pages, double-spaced, font 12, plus exhibits not exceeding five pages.
The purpose of the court attendance on October 12, 2021 is to hear submissions on whether the father has complied with the restraining order, and this order, and whether there should be any change to the father’s parenting time, including whether the father’s parenting time should be supervised, or whether the father’s parenting time should be reinstated as was contained in the order of Tobin J. dated May 19, 2020.
On an interim without prejudice basis, the mother shall have decision-making authority as to all matters relating to the child’s education, including the selection of the child’s school.
This order is made pursuant to the Children's Law Reform Act.
The father’s approval of a draft copy of this order is dispensed with.
Costs are reserved to the motions judge on October 12, 2021.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: August 10, 2021