Court File and Parties

Court File No.: FS-22-28735 Date: 20220324 Ontario Superior Court of Justice

Between: K.A., Applicant – and – C.A., Respondent

Counsel: Self-represented (for the Applicant) No one appearing for the Respondent

Heard: March 24, 2022

Before: M. D. Faieta, j.

Reasons for Decision

[1] The Applicant brings this motion, without notice to the Respondent, for a restraining order.

[2] Two days prior to the hearing of this motion, the court raised the issue of the scope of s. 35(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and provided the Applicant with contact information to Legal Aid Ontario and the Barbra Schlifer Clinic if she wished to seek their assistance. The Applicant advised today that she did not contact either agency.

[3] The Applicant is the Respondent’s mother. She is 61 years old and works at a daycare centre. The Respondent is the Applicant’s son. He is 36 years old. The Respondent’s son, E.L., is 14 years old. E.L.’s parents do not cohabit with one another. E.L. has resided with the Applicant since December 2020 at the request of E.L.’s mother as she found him difficult and wanted him out of her house. The Applicant is unaware of a parenting order having been issued in relation to E.L.

[4] Over the last week the Respondent has visited the Applicant’s home twice. He has demanded that E.L. return to his mother’s home. He did not do so.

[5] On March 21, 2022, the Respondent once again went to the Applicant’s apartment demanding E.L. to leave with him. The Respondent was verbally abusive towards the Applicant and threatened that he would make the Applicant “suffer” if E.L. did not leave with him. The Respondent threw his son’s Xbox, jacket, clothes and other personal property off the Applicant’s fifth floor balcony onto the ground below. By the time they went downstairs to retrieve E.L.’s property, his clothes were gone and only his broken X-Box remained. The Applicant states that the Respondent made E.L. get into his car and took him back to his mother’s home.

[6] The Applicant states that a few months earlier the Respondent threatened to stab her and told her that she would not wake up the next morning. The Applicant locked herself into her bedroom. On earlier occasion the Respondent repeatedly punched her head which resulted in bleeding. On another occasion, the Respondent punched the Applicant’s face which resulted in a black eye.

[7] Following this incident on March 21, 2022, the Applicant called the Toronto Police Service. She was told that a police officer would come to speak with her; however, she states that the police did not attend her home nor contact her. The Applicant states that she went to Old City Hall to seek a restraining order and was told that this was a “family matter” and that she should seek a restraining order from the family law courts. The Applicant visited more than one court in the downtown Toronto area on March 22, 2022. Her last stop was this court whereupon the Applicant completed a handwritten Application and Notice of Motion for a restraining order to keep the Respondent away from her. No other relief is claimed.

[8] The Applicant has not returned home after the events of March 21, 2022. Given the Respondent’s behaviour, the Applicant is afraid of the Respondent. She is staying with another son temporarily. The Applicant has decided to move to another province in about a month.

[9] A restraining order is available under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and the CLRA.

Family Law Act

[10] Subsection 46(1) of the FLA provides that a restraining order may be made against a spouse or former spouse of the applicant as well as against a person that is cohabiting with the applicant or a person that has cohabited with the applicant for any period of time.

[11] Under s. 1 of the Act, "cohabit" means to live together in a conjugal relationship, whether within or outside marriage. I find that a restraining order is not available to the Applicant under s. 46(1) of the FLA as the parties never lived together in a conjugal relationship.

Children’s Law Reform Act

[12] Subsection 35(1) of the CLRA provides that:

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.

[13] Unlike the FLA, the CLRA provides that a restraining order is available to “any person” rather than only by a person who is seeking an order against a person who is a spouse, former spouse, or person with whom they are cohabiting or cohabited.

[14] However, s. 35(1) is not a standalone provision. It is found within Part III of the CLRA which comprehensively deals with parenting time and decision-making responsibility. Amongst other things, section 19 of the CLRA provides that the purposes of Part III are to ensure that parenting orders are determined based on the best interests of the children and to provide for the more effective enforcement of parenting orders and contact orders. Further, section 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, provides that an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. In my view, the purpose of a restraining order under s. 35(1) of the CLRA is to support the operation of parenting time and decision-making responsibilities granted by a parenting order and to protect the best interests of the child.

[15] There are no reported cases where a restraining order has been granted under s. 35(1) of the CLRA to a person who was not granted a parenting order in respect of a child. However, two cases make it clear that a restraining order under the CLRA can be sought by a grandparent to whom a parenting order has been issued. See D.E. v. C.S., 2017 ONCJ 668, where the court granted two grandparents temporary custody of their three-year-old grandson and a restraining order against that child’s parents. Similarly, see Catholic Children’s Aid Society v. I.A., 2019 ONCJ 49, at para. 177, where the court stated that it would have considered a request for a restraining order from a grandmother, who had custody of her grandson, against her daughter/the grandson’s mother had the grandmother, rather than the CAS, made such request.

[16] While the Applicant is a very sympathetic figure, I am mindful of the aphorism that hard cases make bad law and thus decline the invitation to expand the application of s. 35(1) of the CLRA.

[17] However, the Applicant is not without remedy. The issuance of a peace bond under s. 810 of the Criminal Code by a Justice of the Peace should be considered. See:

(1) “What is a peace bond?”, Community Legal Education Ontario, https://www.cleo.on.ca/en/publications/handbook/what-peace-bond (2) Ontario Court of Justice – Guide for Applying for a Peace Bond, https://www.ontariocourts.ca/ocj/files/guides/guide-peace-bond-EN.pdf

[18] Motion dismissed.

Mr. Justice M. D. Faieta Released: March 24, 2022

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: K.A. Applicant – and – C.A. Respondent

REASONS FOR DECISION Mr. Justice M. D. Faieta Released: March 24, 2022