Court File and Parties
COURT FILE NO.: FC717/19 DATE: February 24, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Rheannon Lee Reis, applicant AND: James Leonard Lovell, respondent
BEFORE: MITROW J.
COUNSEL: W. Scott Gallagher for the applicant Kenneth B. Fraser for the respondent
HEARD: December 22, 2021
Endorsement
Introduction
[1] This is the applicant’s motion for a restraining order pursuant to s. 46(1) of the Family Law Act, R.S.O. 1990, c. F.3.
[2] The applicant requests that the restraining order provide that the respondent shall not come within 500 metres of the location where she resides and that the respondent shall not come within 100 metres of her place of employment. The restraining order sought by the applicant would include an exception that the respondent can attend at either of those two locations pursuant either to a written agreement between the parties or further order.
[3] Although the relief sought in the motion was for the restraining order to be “interim-interim, or interim, or final,” there is no basis for a final order as this motion was not framed as a motion for summary judgment. Accordingly, I deal with the applicant’s motion as a request for an interlocutory restraining order.
[4] The respondent opposes the relief sought by the applicant.
[5] At the conclusion of argument, the court indicated that the decision was reserved and the endorsement made at that time included a provision that the respondent’s counsel will advise his client not to attend at the property pending the release of the decision and that the court expects that the respondent shall comply with that recommendation from his counsel.
[6] The respondent had raised an issue that the applicant had filed some additional affidavits contrary to the Family Law Rules. However, the respondent did file an affidavit to respond to the additional affidavits and the applicant’s motion was argued on the basis that the court would consider all affidavits filed.
[7] For reasons that follow, the applicant’s request for an interim restraining order is granted but without prejudice to the respondent’s right to bring a motion to terminate the interim restraining order as set out in the order below.
Relevant Background
[8] The parties had cohabited for a number of years. The current proceeding was commenced in 2019. The parties were never married to each other.
[9] The applicant currently resides in a home located on a rural property on Mayfair Road in Melbourne, Ontario (the “Mayfair property”).
[10] The parties separated in September 2018, at which time the respondent and the parties’ daughter (born in 2003) left the Mayfair property. The applicant has remained in the Mayfair property since separation.
[11] The respondent agrees that he has not returned to the Mayfair property since 2018 except on a few limited occasions to retrieve personal possessions.
[12] The evidentiary record discloses that this proceeding has been most acrimonious, focusing on the dispute as to the beneficial ownership of the Mayfair property, which is currently registered in the names of both parties.
[13] The respondent takes the position that he is the beneficial owner of the Mayfair property.
[14] The applicant has alleged that her signature was forged on a series of documents, whereby the Mayfair property was refinanced without her knowledge.
[15] The applicant deposes that she swore a private information against the respondent for forgery, theft and fraud in March 2019, but that the Crown Attorney refused to proceed with that matter over the applicant’s “very bitter objection.”
[16] The applicant has commenced a civil action against the Bank of Nova Scotia regarding the refinancing of the Mayfair property.
A. The Event Precipitating the Applicant’s Motion for a Restraining Order
[17] The applicant’s decision to seek a restraining order was in direct response to a brief letter from the respondent’s counsel to the applicant’s counsel dated November 8, 2021, stating the following:
Please be advised that commencing November 12, 2021, my client will be attending the property located at 21170 Mayfair Road Melbourne, Ontario from time to time to bow hunt during all applicable hunting seasons. He has cleared these arrangements with the Ontario Provincial Police.
[18] This letter prompted the applicant’s counsel, on the following day, to advise the respondent’s counsel via email that the applicant would be seeking a restraining order.
B. The Mayfair Property
[19] The Mayfair Property consists of 100 acres.
[20] The respondent explains that he purchased the land in 1994 prior to meeting the applicant. Construction of the home over a period of four years was completed in 2008. The Mayfair Property is “off the grid,” as explained by the respondent – it is solar and wind powered.
[21] The respondent’s description and history of the Mayfair Property is not challenged by the applicant. The respondent deposes that he has spent “thousands of hours over 25 years” to turn this property into a place that is very special to him and that reflects his belief in nature. The respondent further deposes that he has completed a number of projects on the property in consultation with the Ministry of Natural Resources and the local conservation authority to enhance the property as a nature reserve.
[22] The home occupies only a small portion of the property.
[23] The applicant deposes that the respondent has substantial wealth as a result of investment in residential properties.
[24] The respondent, apparently growing quite impatient with the slow progress of the litigation, deposed that he is no longer willing to voluntary exclude himself from this property. He claims that there is no reason why he should not be able to enjoy this property at his discretion – that he misses “this special place very much.”
[25] It is the respondent’s evidence that he can attend easily on the Mayfair property without interacting with the applicant and without attending near the home.
C. Evidence Relating to the Request for an Interim Restraining Order
[26] The applicant portrays the respondent as having contacted various clients of the applicant “to try and smear” the applicant and “to intimidate” the applicant, all of which is denied by the respondent. The applicant deposes that police have been contacted 17 times during the period commencing with the date of separation to October 24, 2019. Although the applicant appends as an exhibit a handwritten list of the police occurrence numbers allegedly relating to this time period, the applicant has attached only two of the occurrence reports as exhibits.
[27] I find that little weight can be given to the applicant’s evidence merely listing police occurrence numbers, without including those reports or at the least relevant portions of the reports.
[28] The occurrence report dated October 17, 2018 is one page and appears to be only a portion of the occurrence report. Under the heading “Summary,” the report indicates that the applicant was looking for advice only, that she was describing the respondent as becoming passive-aggressive and threatening and that she feels unsafe.
[29] The second occurrence report attached as an exhibit is dated October 27, 2018, but it appears to relate to occurrences between October 20, 2018 and October 27, 2018. The summary is limited to a description of the respondent entering the home and taking items allegedly belonging to the applicant. The applicant was told to contact her lawyer. Options for a peace bond were explained to the applicant.
[30] For his part, the respondent, in addition to addressing the two police reports provided by the applicant, discusses briefly the contents of three of the other remaining police occurrence reports. The respondent deposes that two of these reports relate to the applicant’s conduct. However, I place minimal weight also on this evidence given the failure to include the reports.
[31] The respondent deposes that he is aware of an additional police occurrence report regarding an occurrence on March 26, 2019. The respondent deposes that he spoke with the investigating officer and describes what the officer told him regarding the applicant’s conduct. I ascribe little weight to this evidence in the absence of a copy of the occurrence report.
[32] The respondent then describes the conversations he had with Constable Balzer on April 19, 2019 and conversations he had with Sergeant Rankin on November 26, 2020 and December 18, 2020.
[33] The respondent’s evidence relates to information received from the police officers regarding the applicant. I ascribe little weight to that evidence in the absence of police occurrence reports.
[34] The respondent does depose that Sergeant Rankin allegedly told him that he did not record an occurrence number but that he did keep notes. This explanation, even if true, adds nothing to the marginal weight to be given to the respondent’s evidence without an affidavit from Sergeant Rankin, including a copy of his notes.
[35] As part of her evidence, the applicant files as an exhibit page 36 from a previous lengthy affidavit sworn February 17, 2021 in relation to an earlier motion. The applicant deposes that she “repeats and relies” on the statements contained in that page.
[36] Included on that page are allegations that the respondent has made a practice of driving past the Mayfair property from time-to-time. The applicant also deposes that she has asked her friend, Beverly Chapman, to stay with her at the Mayfair property.
[37] Also included on that page is the applicant’s allegation that the respondent contacted persons that the applicant knows and does business with in order to intimidate them. The applicant lists ten persons that she alleges have told her about the respondent’s conduct.
[38] Except as discussed below, none of these persons provided an affidavit, nor did the applicant offer details as to the nature of what the applicant was told. There is some information provided by the applicant from one of the persons listed, Dr. Patrick Long, but that information consists of a transcript of a phone message left by the respondent for Dr. Long. In my view, the contents of that phone message add nothing to the applicant’s claim for a restraining order.
[39] The respondent has discussed all ten persons named by the applicant and his interactions with those persons, if any. The respondent denies engaging in any behaviour to intimidate or threaten those persons or the applicant.
[40] One of the ten persons listed by the applicant, Beverly Chapman, did provide a brief affidavit but I find that this affidavit is not a first-hand account and is entitled to little or no weight.
[41] However, the applicant’s material does include first-hand accounts from two persons who came into contact with the respondent.
[42] Laird Squires (“Mr. Squires”), who operates a construction company and is one of the ten persons listed by the applicant, filed an affidavit deposing that he is a client of the applicant. He attended at the Mayfair property in October 2018 to change a lock at the applicant’s request. While he was doing that, the respondent arrived and told Mr. Squires not to change the lock. Mr. Squires complied. When Mr. Squires went to leave, his van was blocked by the respondent’s truck; the respondent came outside and Mr. Squires deposes that the respondent told him that if he ever returned to this property that he may never leave this property. Mr. Squires added that he knows when someone is attempting to intimidate or threaten him and that is what the respondent was attempting to do.
[43] The respondent deposes that Mr. Squires is a “casual friend/acquaintance.” The respondent agrees that he attended at the Mayfair property in October 2018. He states that Mr. Squires was changing the lock on his bedroom door. The respondent denies blocking Mr. Squires’ vehicle or threatening Mr. Squires.
[44] It is noted that Mr. Squires stated explicitly that he is not a friend of the respondent.
[45] The parties agree that on September 21, 2021 that the respondent attended at the Mayfair property to pick up some of his belongings, and that the police were present.
[46] Achille Currado (“Mr. Currado”) filed an affidavit in support of the applicant. It is his evidence that the applicant was apprehensive of the respondent coming to the property in September 2021 to take possession of his belongings and that the applicant asked Mr. Currado to be there as a support. Mr. Currado is a former police officer with approximately 22 years experience.
[47] Mr. Currado corroborated the applicant’s evidence that the respondent, while he was retrieving his property, referred constantly to the applicant as “the tenant.” It was Mr. Currado’s assessment that the respondent was “plainly provoking” the applicant and wanting to get a reaction from her.
[48] Mr. Currado deposed that an arrangement was made for Mr. Currado and his girlfriend to stay at the Mayfair property commencing November 29, 2021 and that, as of December 9, 2021, that he is residing fulltime on the property. It is Mr. Currado’s evidence that he is concerned about the applicant’s safety.
[49] In response to Mr. Currado’s affidavit, the respondent deposes that he did nothing that was intended to provoke the applicant or to get a reaction from the applicant. However, he does not deny referring to the applicant as “the tenant.”
[50] The applicant has deposed: “I am fearful for my safety.”
The Law
A. Legislation
[51] The following are the relevant provisions of s. 46 of the Family Law Act relating to restraining orders:
Restraining order
46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) 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.
Same
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
Provisions of order
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
B. Jurisprudence – Restraining Orders
[52] In order to succeed on her motion, the applicant must demonstrate that she has reasonable grounds to fear for her safety. In Gauthier v. Lewis, 2021 ONSC 7554 (Ont. S.C.J.), relied on by the respondent, the court held, at para. 36, that the onus of proof is on the person asking for a restraining order and that the standard of proof is on a balance of probabilities.
[53] A person’s fear sufficient to justify a restraining order may be entirely subjective, so long as it is reasonable and legitimate.
[54] In McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. reviewed the relevant cases and, at para. 31, summarized the attributes of a person’s fear sufficient to support a restraining order:
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
[55] The foregoing analysis from McCall, supra, was adopted by Kiteley J. in Lawrence v. Bassett, 2015 ONSC 3707 (Ont. S.C.J.), at para. 12.
[56] Further, in Lawrence, supra, Kiteley J. noted that the purpose of s. 46 as it relates to interim orders is to permit litigants to conduct litigation in as reasonable an atmosphere as possible and to provide litigants with some element of order in difficult and acrimonious litigation. Kiteley J. states, at para. 15 (emphasis added by Kiteley J.):
15 I agree with the observation made by McDermott J. in Fuda v. Fuda as follows:
The strength of the evidence in support of the restraining order has to be considered in light of Callon v. Callon, [1999] O.J. No. 3108 (Ont. Div. Ct.) which was a motion for leave to appeal an order restraining a party from communicating to third parties about the moving party. The court considered the issue of an interim restraining order under s. 46 of the Family Law Act. In their brief reasons for judgment, the panel stated that the " purpose of Section 46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible." In other words, the reason for a restraining order is to provide the litigants with some element of order in the context of difficult and acrimonious litigation. This is particularly important where there is a child involved as in the present case.
[footnote removed]
[57] The foregoing discussion in Lawrence, supra, was referred to in Boyle v. Stocker, 2021 ONSC 1565 (Ont. S.C.J.), at paras. 48-49, relied on by the applicant.
[58] In Gauthier, supra, the following principles are summarized, including that it is not necessary for a responding party to have actually committed conduct amounting to harassment – rather it is sufficient if the moving party has a legitimate fear of such acts being committed:
33 In considering whether to grant such an Order the court must ensure that an appropriate balance is maintained between ensuring that victims of violence are protected while also ensuring that such orders, which can have criminal consequences and which are registered in CPIC, are only granted with good reason and where a clear case has been made out.
34 It is not sufficient to grant such an order on the basis that there would be no harm in granting the order. (See: Edwards v. Tronick-Wehring, 2004 ONCJ 309)
35 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.
37 The person's fear may be entirely subjective so long as it is legitimate. 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.
38 That stated, a restraining order is not a remedy for bad manners, poor communication and suspicion (See: Lazier v. Mackey, 2012 ONSC 3812, [2012] O.J. No. 3308 (Ont. S.C.J.).
Discussion
[59] I am satisfied that an interim restraining order should issue.
[60] Although there is evidence from both parties that merits little weight, as discussed earlier, I find that there is other evidence that justifies the restraining order.
[61] This litigation has been acrimonious. The applicant is entitled to conduct this litigation in an atmosphere free of fear that the respondent will attend, unannounced, on the property where she resides.
[62] I take into account that the Mayfair property is located in a somewhat remote location in a rural area – “off the grid” – as explained by the respondent. The evidence of Mr. Currado corroborates the applicant’s level of fear and unease to the point that the applicant has arranged for other persons to stay with her on the Mayfair property.
[63] The respondent’s evidence, when he attended to pick up his personal property, that he was not attempting to get a reaction from the applicant is somewhat glib. In the context of the litigation issues regarding the Mayfair property, I find that the respondent’s characterization of the applicant as “a tenant” was intentional and provocative.
[64] While the respondent denies acts of intimidation, the evidence of Mr. Squires is to the contrary and cannot be ignored.
[65] The respondent’s unilateral proclamation to enter the Mayfair property at his discretion to go bow hunting was bad judgment, bound to cause angst and upset to the applicant. I take into account that police had to be present in September 2021 while the respondent retrieved his belongings.
[66] Although the respondent claims that he can limit his attendance at the Mayfair property to locations which are not near the home and where he would not come into contact with the applicant, I find that the applicant’s psychological safety would be compromised by knowing that the respondent may be somewhere on the property.
[67] It is abundantly clear that the applicant wants no in-person contact with the respondent. The applicant has limited the scope of the restraining order to prohibit the respondent’s attendance at locations where she lives and works.
[68] The applicant’s safety, including her psychological safety, is incompatible with the respondent attending at the Mayfair property, irrespective of where he may choose to go on the property or how far he is from the home.
[69] Considering the entire evidentiary record, I am satisfied on the balance of probabilities that the applicant’s fears for her safety are reasonable and legitimate.
[70] Regarding the respondent’s concern as to the length of this litigation, I take into account that the pandemic has created delays outside the control of either party.
[71] Therefore, the order below provides that the interim restraining order is without prejudice to the respondent’s right to bring a motion to terminate the restraining order after June 30, 2023 if this proceeding has not been resolved. Should that be the case, and should the respondent contemplate bringing such a motion, the parties are encouraged to consider, if appropriate, other reasonable alternatives, including a written agreement, as to the use of the Mayfair property pending trial or final settlement.
[72] Little argument was directed towards the applicant’s request to include her place of business in the restraining order. Given the applicant’s fear for her safety, the restraining order will include her place of business, with the respondent being restrained from attending within 100 metres of that location, as asked by the applicant in her motion.
[73] The applicant sought a 500 metre distance regarding the Mayfair property. I find that to be excessive. The restraining order will prohibit the respondent from attending within 200 metres of that property.
[74] During the hearing of the motion, there was an indication from the applicant’s counsel that the respondent’s address was unknown to the applicant. The restraining order endorsement sheet, referred to in the order below, requires the clerk to arrange for personal service of the restraining order on the respondent. It is expected that the respondent will cooperate with his counsel to ensure that personal service has been effected as required.
Order
[75] I make the following interim order:
The applicant’s request for an interim restraining order is granted.
An interim restraining order in Form 25F shall be prepared and issued by the clerk in accordance with the restraining order endorsement sheet.
If this proceeding has not been finalized by June 30, 2023, then this order is without prejudice to the respondent’s right to bring a motion for the termination of the interim restraining order.
If the parties are unable to settle costs, then the parties may make written submissions regarding costs. The written submissions shall be forwarded via the portal in the usual manner. The applicant’s submissions shall be served and filed within two weeks, the respondent’s submissions shall be served and filed within two weeks thereafter, and the applicant’s reply submissions, if any, shall be filed within two weeks after the due date of the respondent’s submissions. The written costs submissions are limited to a maximum of three typed pages (two pages for reply), minimum font 12, together with copies of any time dockets, bills of costs or offers to settle, and with all references to cases to be via hyperlink. If the parties settle costs, then counsel shall forward a brief letter to the trial coordinator confirming same.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: February 24, 2022