Court File and Parties

COURT FILE NO.: FC-21-2196 DATE: 2021/12/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: T.M., Applicant -and- J.W., Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Stephen Pender, for the Applicant Respondent, Self-Represented

HEARD: December 9, 2021 by Video Conference

Endorsement

[1] The Applicant seeks leave to bring a motion on an urgent basis, prior to a case conference being held and to be scheduled in priority. The motion she seeks to bring seeks interim orders:

a. Abridging the time for service of her motion;

b. Providing her with primary residence of the child and sole decision-making.

c. That the Respondent not have any parenting time with the child.

d. Restraining the Respondent from communicating with the Applicant or the child, and from bring within 250 metres of them.

e. That the Order be enforceable by the police.

[2] I am granting the Applicant’s motion, in part, and make the interim orders set out below.

[3] The evidence before me raises very serious concerns with respect to the Applicant’s safety and the safety of the child. In some ways this matter is not urgent because the Respondent has been criminally charged with several serious incidents of violence against the Applicant and is subject to terms of release that prevent him from communicating with the Applicant and the child, and being within 250 metres of them.

[4] However, the Respondent has also recently been charged with breaching his terms of release. He is presently imprisoned at the Ottawa-Carleton Detention Centre but has a bail hearing on December 10, 2021.

[5] Even though this matter is not, in that respect, urgent because of the terms of release related to the criminal charges, I find that the seriousness of the allegations against the Respondent warrant the orders being made below. These orders provide the Applicant with a further layer of protection, which I find is warranted.

[6] However, I do not find that the order for decision-making or primary residence is urgent, and therefore decline to make orders at this time on these issues. There is no evidence before me that decisions need to be made for the child on an urgent basis. The child is also obviously residing with the Applicant given the Respondent is prohibited from having contact with him. Given the allegations made by the Applicant, the criminal charges against the Respondent, and his terms of release, the orders that the Applicant seeks with respect to decision-making and primary residence appear warranted. But this does not make these issues urgent and so I decline to make these orders on an urgent basis.

[7] I am not ordering the police to enforce the Order. The police were not given notice of this motion and I am not ordering them to do something for which they have not received notice. However, the police may certainly enforce the terms of the orders made today if they wish to do so, and they may make that decision in accordance with their operational directives. The police also have jurisdiction to enforce the terms of release related to the criminal charges.

[8] I am ordering a return date for this motion in early January 2022, or as soon thereafter as the court’s capacity allows. This motion was heard with limited notice to the Respondent – Applicant’s counsel advised he was served at 1:02 pm today. Given this, I am treating this as an ex parte motion, which requires a return date within 14 days or such other time as the court directs. In this case, given the terms of release related to the criminal charges prevent the Respondent from having contact with the child, and also restrain him, I do not find that this motion must be returned within 14 days, and that the date in January, as directed below, is appropriate.

[9] I therefore make the following orders on a temporary without prejudice basis:

a. Pursuant to the Children’s Law Reform Act, and pending further order of the court:

i. the Respondent, J.W., shall not have any parenting time with the child, B.

ii. The Respondent, J.W., shall be restrained from communicating with the Applicant, T.M., and the child B, directly or indirectly, except for communications with the Applicant’s counsel of record in this family law proceeding, for the purposes of this litigation only.

iii. The Respondent, J.W., shall be restrained from attending within 250 metres of the Applicant, T.M., or the child B, their residence, place of employment or school, or any other location where they are known to be.

b. Pursuant to the Family Law Rules:

i. This motion shall be returned on a date to be set by the Trial Coordinator in early January 2022 or as soon thereafter as the court’s capacity allows. If I am not available to hear the return of the motion, the motion may be placed before another judge.

ii. Counsel for the Applicant shall serve the Respondent with a copy of this endorsement forthwith.

[10] I did not see a Form 35.1 in the court file. It may be that the Applicant has filed one, but it is not yet made it to the court file. The digital court file includes her sworn Form 35A, but a Form 35.1 is required. Pursuant to the Family Law Rules, if not already filed, the Applicant shall serve and file her sworn Form 35.1 within seven days.

[11] Costs of this motion reserved to the return of the motion.

[12] A copy of this decision, using initials for the parties, the child, and deleting the child’s birth date, may be sent to publication.

Justice Pam MacEachern

Date: December 9, 2021

COURT FILE NO.: FC-21-2196 DATE: 2021/12/15

ONTARIO SUPERIOR COURT OF JUSTICE

RE: T.M., Applicant -and- J.W., Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Stephen Pender, for the Applicant Respondent, Self-Represented

ENDORSEMENT

Justice Pam MacEachern

Released: December 15, 2021