Nature of the Motion

[1] The applicant, Sara Trotta (“Sara”), seeks a restraining order against the respondent, an order for exclusive possession of the matrimonial home and a parenting order. The motion was brought pursuant to the Order of Shore, J., dated November 7, 2022, which granted Sara leave to bring this motion prior to a case conference on the basis of urgency.

[2] The respondent, Dustin Kyle Samuel Chung (“Dustin”) was served with the Order of Shore, J. and did not appear at the motion today. Dustin has not engaged with Sara since he was served with her Application on October 28, 2022.

Background

[3] Sara and Dustin lived together for almost 8 years. They were married on June 4, 2017. They separated on August 7, 2022.

[4] They have one child, a daughter, age 4, who began junior kindergarten in September 2022.

[5] The parties live in a rented apartment in Toronto. Sara has paid the rent since the parties began cohabitating on December 3, 2014.

[6] Sara is 38 years old. She is employed as a policy analyst since March 2017. Sara has been diagnosed with multiple sclerosis (“MS”), which affects her mobility and is exacerbated by stress.

[7] Dustin is 38 years old. He is unemployed. According to Sara, Dustin has not secured consistent full-time employment for longer than 3-months at a time. In 2021, Sara deposes that Dustin earned no taxable income. Sara also deposes that Dustin currently claims to be working, but she has no details of his employment or income, if any. As a result, Sara has been solely responsible for paying all of the parties’ expenses, including the lease to the matrimonial home; car lease; groceries; clothing; daycare; preschool tuition; mobile phones for both parties; cable, internet and other household related and personal expenses.

[8] Since the beginning of the pandemic in March 2020, Sara has been working from home, while being the child’s primary caregiver and being responsible for all household tasks.

[9] Sara’s evidence is that she experienced family violence by Dustin throughout their marriage.

[10] After separation, Sara developed a safety plan; issued the within Application and on the day Dustin was served with her material, Sara and the child moved to her father’s home temporarily.

Procedural History

[11] Sara issued the within application on October 25, 2022, in which she sought, among other things, a divorce, decision-making responsibility for the parties’ child or joint decision-making responsibility in the alternative; an order that the child shall reside primarily with her and have parenting time with the respondent; an order that the parties shall attend parenting mediation; child support; an order imputing income to Dustin; and a restraining order.

[12] In support of the relief sought, Sara filed a sworn financial statement, dated October 21, 2022 and a Form 35.1, Affidavit for decision-making and parenting time, sworn on October 21, 2022.

[13] Dustin was served with Sara’s Application, her financial statement, her Form 35.1 Affidavit; the Automatic order for disclosure; and the Mandatory Information Program Notice on October 28, 2022, at 4:52 p.m., when he was served personally at the parties’ matrimonial home.

[14] Accompanied with Sara’s Application, was a letter that was written by her counsel, dated October 27, 2022. In this letter, Mr. Richard explained that he was representing Sara and the marriage was at an end; Sara was willing to advance to Dustin the sum of $10,000 as an advance against an equalization payment or uncharacterized to enable him to find alternative accommodation; Sara wanted to facilitate parenting time between the child and Dustin; Sara asked Dustin to participate in parenting mediation with Christine Kim; and asked Dustin to respond to him by November 4, 2022.

Communication between the Parties since Proceedings Began

[15] Attached to Sara’s affidavit as Exhibit “E”, are text messages between Sara and Dustin beginning on October 29, 2022. On October 29, 2022, at 1:13 a.m., Dustin asks Sara if she and the child are okay since he had not heard from them since 8 a.m. the day before. Sara responded and confirmed that she and the child are safe and ok. Dustin then indicated that he was worried and asked what was going on? Whether she and the child are coming home and where they were. Sara responded that they were not coming home that night; that they were at her father’s home and will come home once he had had a chance to process the information that he received earlier and made arrangements for himself. Dustin expressed that he was not comfortable with the child being away from the home and that he would prefer the child to be home. Sara responded that once there was written confirmation about him leaving then she and the child would return home. Dustin did not respond to this.

[16] On October 31, 2022, at 4:29 a.m., Sara texts Dustin to advise that the child is not feeling great and that, as a result, she may not be going out to trick or treat. Sara tells Dustin she thinks the child would love to speak with him and that she wanted to set up a time for them to talk or video chat. At 9:03 a.m., Dustin responds, saying he hopes the child feels better and that he would love to see her. Sara sends Dustin a picture of the child dressed up as a “Love bug” for school and asked him if he was at the matrimonial home; whether he had had a chance to read the documents he had received; and that she wanted to arrange a time for him and the child to chat later on. Dustin did not respond.

[17] On October 31, 2022, Sara attempted to video chat Dustin with the child three times at 3:33 p.m.; 3:55 p.m. and 4:30 p.m. Dustin did not pick up any of the video calls. These calls were made through the WhatsApp site.

[18] On November 1, 2022, at 10:53 a.m., Sara messages Dustin again and offers to arrange for a video call at 3:30 p.m. for him and the child and asked him if that is not a convenient time to propose a time that suits his schedule. Dustin asks Sara if he can see the child and she answers that he can see the child in a public space with one of her family members present. She suggested Friday (November 4, 2022) since the child did not have school on that day. Dustin did not respond.

[19] On November 4, 2022, Mr. Richard did not receive a response from Dustin, despite his letter in which he asked Dustin to respond to him by that date.

[20] On November 7, 2022, Sara brought the matter before the To Be Spoken To court, seeking leave to bring this urgent motion, because Dustin had not responded to any communications from Sara and/or her counsel regarding this proceeding. Dustin was e-mailed the zoom link to attend the To Be Spoken To court on November 7, 2022. Dustin did not attend.

[21] On November 7, 2022, Justice Shore found that this matter was urgent and granted Sara permission to bring a motion for a restraining order, exclusive possession and a parenting order, prior to a case conference being heard. Sara was also ordered to serve her motion material on Dustin before the end of the day on November 8, 2022, and the motion was scheduled to be returned before the court today, on November 15, 2022.

[22] The Court sent Dustin directly the Endorsement of Shore, J., dated November 7, 2022.

[23] In accordance with the order of Shore, J., Sara served Dustin with her Notice of Motion, Affidavit, sworn on November 7, 2022; her Factum, dated November 7, 2022; her draft Order and Bill of Costs by e-mail at 5:11 p.m. on November 8, 2022.

[24] Despite being served with Justice Shore’s order and Sara’s motion material, Dustin did not respond. He did not reach out to Sara or to Mr. Richard.

[25] At the commencement of this motion, the court asked Sara’s counsel to telephone Dustin on his cellular phone number to advise him that the Court requested his presence at the motion virtually. Mr. Richard telephoned Dustin at 10:57 a.m., when he was on Zoom and there was no answer. Mr. Richard left a voicemail message for Dustin.

[26] This motion proceeded therefore in the absence of Dustin and with no material filed on Dustin’s behalf. It was, however, a motion made on notice to Dustin.

Issues to be Decided

[27] The three issues I need to decide on this motion are:

a. Should Sara be granted exclusive possession of the matrimonial home?

b. Should Sara be granted a restraining order? and

c. Should the parenting order proposed by Sara be granted, which includes an order for Dustin’s parenting time and that the parties engage in parenting mediation?

Issue one: Exclusive Possession of the Matrimonial Home

[28] Sara seeks exclusive possession of the parties’ rental matrimonial home. Section 24 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) gives the court the discretion to direct that Sara be given exclusive possession of the matrimonial home:

Order for possession of matrimonial home

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

Temporary or interim order

(2) The court may, on motion, make a temporary or interim order under clause (1) (a),

(b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).72

[29] Subsection 24(3) of the FLA sets out the criteria for the court to consider when exercising its discretion:

(a) the best interests of the children affected;

(b) the possible disruptive effects on the child of a move to other accommodation; and the child’s views and preferences, if they can reasonably be ascertained;

(c) any existing orders under Part I (Family Property) and any existing support orders;

(d) the financial position of both spouses;

(e) any written agreement between the parties;

(f) the availability of other suitable and affordable accommodation; and

(g) any violence committed by a spouse against the other spouse or the children.

[30] The case law has provided the following considerations and principles to guide the exercise of its discretion under s. 24(3) of the FLA:

a. Whether the parent who makes the claim for exclusive possession is the primary parent; Menchella v. Menchella, 2012, ONSC 1861, at paras-16-18.

b. Whether the parties have suitable alternate accommodations available; Naccarato v. Naccarato, 2017 ONSC 6641, at para. 13

c. Whether violence or a psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical. Aston v. Matwee, 2015 ONSC 8087, at para. 34; Kutlesa v. Kutlesa 2008 CarswellOnt 1657; and

d. Whether the best interests of a child are paramount in determining an order for exclusive possession: Bortolotto v. Bortolotto, [2002] O.J. No. 2068 (Ont. S.C.J.)

[31] An order for exclusive possession is dramatic and is highly prejudicial to the dispossessed spouse. Such an order should not be made on a motion where there is conflicting evidence that requires findings of credibility that would only be available at trial.

[32] In this matter, however, Dustin was properly served and has chosen not to participate in these proceedings.

[33] It is clear on the record before me that there is conflict in the home that has had an adverse effect on the child. The stress in the home has become unbearable for Sara. Stress exacerbates Sara’s MS symptoms which, in turn, is not in the child’s best interests. Although Sara left with the child to stay at her father’s home when Dustin was served with this court application, that was not intended to be a long-term solution.

[34] Having to live somewhere other than the matrimonial home will be disruptive to the child given that her school is nearby. Her bedroom, clothing, toys and personal items are in the matrimonial home and in her bedroom. She just began junior kindergarten in September of this year.

[35] While Dustin does not yet have alternative accommodation, Sara has proposed that she will advance to him the sum of $10,000 to be credited to her against an equalization payment or in some other fashion when the parties settle. This lump sum will allow Dustin the ability to secure alternative housing for himself and the child.

[36] In terms of the alleged family violence, the amendments to the Divorce Act in March 2021, introduced a statutory obligation for the courts to take family violence and its impact into account when considering a child’s best interests.

[37] I find that it is in the child’s best interests for Sara to have exclusive possession of the matrimonial home, particularly for her stability, given her young age. Given that Sara is the party who has been financially responsible for the apartment lease payments and all household-related expenses and given that Sara has proposed to advance Dustin sufficient funds to enable him to find alternative and appropriate accommodation, having Sara and the child return to the matrimonial home is in the child’s best interest. This will enable Sara to continue to be the child’s primary parent; it will ensure that Sara does not have any additional stress which could exacerbate her MS; it is not in the child’s best interests for the parents to continue living under the same roof; and Dustin’s conduct toward Sara and the child has created conflict and fits within the expanded definition of family violence.

[38] Sara also seeks an order that she be permitted to attend the matrimonial home on November 18, 2022 between 11:00 a.m. and 2:00 p.m. to retrieve necessary belongings for her and the child and that while she is at the matrimonial home that Dustin not be within 500 metres of the matrimonial home.

[39] Finally, Sara seeks that Dustin remove his belongings and vacate the matrimonial home on or before November 25, 2022 and that he return the keys and fobs in his possession, and that her exclusive possession of the matrimonial home commence once Dustin vacates the home.

Issue Two: Restraining Order

[40] A restraining order is available under s.46 of the Family Law Act, R.S.O. 1990, c. F.3 and s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 if the moving party has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”.

[41] I adopt the views expressed by Desormeau, J., in Daleman v. Daleman, 2021 ONSC 7193, at paras. 134 and 135:

[134] To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent's liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

[135] So, while the court must assess the applicant's subjective fear, it must only grant the Order where that fear has a "legitimate basis": Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father's actions or words with the Mother's fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.

[42] The subjective fears Sara expresses are based on the following events she describes:

a. In August 2018, when the child was 3 months old, Dustin burst into anger because he discovered messages between Sara and her manager at the time, to whom Sara had sent a picture of their child. Dustin wrongfully presumed that Sara was romantically interested in her manager, who was male, and he accused her of having an affair, which Sara denied. Regardless, Dustin proceeded screaming at Sara in front of the child, ranting how he hated Sara’s family; tossing food all over the apartment; and threw a soup bowl, breaking the dish. According to Sara, Dustin also threatened to inflict harm on her family members and to have them shot by a “gunman” from “his hood”. Sara reported this incident to the police that evening but was told there was nothing they could do about Dustin’s threats because they were not acted upon;

b. Dustin regularly moved from rage to calm moods. Dustin also continued to threaten Sara’s family after the August 2018 incident. Dustin regularly insults Sara and forbids her from having her family over their home. Dustin calls Sara “not a real woman” and a “fucking loser”;

c. In early 2015, Sara’s grandmother gifted her a car to assist her with her daily activities given her medical condition. In 2016, Sara traded in the gifted car for a new car, which she purchased with financing. In August 2020, Sara, Dustin and the child were in the car and Dustin became enraged. Dustin pushed the rear-view mirror, breaking it, along with cracking the windshield. Dustin then demanded that Sara get a new car, but he refused to take any financial responsibility for the damage he caused to the car;

d. In May 2022, the child began pre-school, at which time Dustin started to tell the child that she smelled of body odour. Dustin began to wipe the child’s armpits with lemon juice before school, a remedy he claims Ontario Public Health provided. As a result of Dustin’s conduct, the child has become self-conscious about her smell. Dustin insists on engaging in this armpit cleaning ritual with the child daily;

e. On September 15, 2022, about a month after the parties had been separated, Sara and the child were in the bathroom getting ready for school. Dustin proceeded to push his way into the small bathroom and Sara was standing behind the bathroom door. Dustin is 6 ft. tall, weighing 200 pounds whereas Sara is 5 ft 4 inches tall, weighing 125 pounds. Sara tried to tell Dustin that she was trying to put Julie in the shower, but Dustin forced the bathroom door open forcibly. Sara was naked and Dustin shoved her with his forearm. Sara ended up getting into the shower on her own and Dustin put the child in front of the mirror and to wipe her armpits with lemon juice;

f. Dustin regularly yells at her; claims the world is against him; and claims Sara is stealing benefits from the federal government;

g. Dustin has threatened Sara that if she doesn’t take her social media posts down about her challenges about living with MS, he will use the posts against her to argue that she cannot care for the child because of her illness. In this manner, Dustin has weaponized Sara’s MS against her; and

h. Dustin has threatened to take the child away from Sara to a place where she will not be able to find her.

[43] The legal principles for the court to apply are as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

c. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.

d. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254.

e. The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

f. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

g. 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. See: Fuda v. Fuda, supra.

h. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195. However, there was no need for the applicant to sit back and let that behaviour continue for months before issuing an application, just so that she could argue that the bad behaviour continued for a lengthy period of time. Where serious behaviour has continued for “some period of time”, that will be sufficient. See: Proevski v. Roffel, 2020 ONCJ 310.

i. 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. See: Fuda v. Fuda, supra.

j. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

k. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.

l. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.

m. A no-contact or communication order made pursuant to section 28 of the Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

n. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

[44] I am not satisfied on the material before me that a restraining order should be granted at this stage in the proceeding. Some of the conduct described by Sara predated the child being born. I must approach the issue of whether to impose a restraining order on Dustin with caution. The nature of such an order is to restrict the freedom of movement and communication of a party. The effect of such an order is quasi criminal in nature. While I have serious concerns about some of Dustin’s conduct described by Sara, I am not concerned about the child’s physical safety. It is noteworthy that Sara has proposed a parenting schedule for Dustin and the child, which is not supervised, demonstrating that she is not concerned about the child’s safety while in Dustin’s care.

[45] I appreciate that a fear for one’s psychological safety is sufficient for a restraining order to be made, the evidence suggests that things escalated in September just after the separation. There has been no conduct or recent incident described that would give fear since September 15, 2022. The texts between Sara and Dustin are not confrontational. Dustin was not combative, nor did he demand for Sara to return the child in these texts.

[46] Given that Dustin has not provided a response to this material, or a response to Sara having brought an Application, I find that it is premature for a restraining order to be ordered at this time, given the serious implications and prejudices that can be brought about by making such an order.

[47] I have granted a no-contact order at this time; an order that the parties communicate only through a co-parenting app; and scheduled an urgent case conference to see if Dustin will participate in this matter. Further I have granted an order for Sara to have exclusive possession of the matrimonial home. In this manner, the physical separation of the parties and conditions on their communication should provide Sara with some comfort until an urgent case conference is held. This order, however, will be without prejudice to Sara’s right to return her motion for a restraining order, if Dustin declines to participate in these proceedings.

[48] I order that both parties subscribe to the application AppClose and for all communication between them regarding the child take place through this co-parenting app. This app is designed for co-parenting and the messages sent between the parties can be exported in such a manner that neither party can change or manipulate the messages he/she sends the other. In that manner, if Dustin sends Sara insulting, demeaning or denigrating messages, Sara will be able to produce a record of these messages at the return of her motion for a restraining order, if necessary.

Issue Three: Parenting Order

[49] Sara seeks the following temporary parenting orders:

a. She be granted temporary sole-decision-making responsibility for the child, after consultation with Dustin;

b. The child shall live primarily with her;

c. Dustin shall have parenting time with the child on Saturdays from 8:00 a.m. to 6:30 p.m. and on Wednesdays from pick-up after school until 6:30 p.m.;

d. Dustin shall have parenting time by video conference on Mondays and Fridays, from 4:30 p.m. to 5:00 p.m. or whenever the child requests;

e. The parties shall attend parenting mediation with Christine Kim; and

f. The parenting transfers on Saturdays and Wednesdays take place in front of the Shoppers Drug Mart located at 2345 Yonge Street, Toronto and that she will designate a third party to handle the transfers on her behalf.

[50] In addition, Sara seeks an order restraining Dustin from engaging in the lemon juice ritual with the child or telling her that she smells; that neither party move the child’s residence more than 20km from the child’s school without prior consent or court order; that neither party discuss this litigation with the child; that neither party denigrate the other in front of the child or in front of third parties when the child is present or allow any other person to speak negatively or denigrate the other party in the presence of the child; an order for police enforcement.

[51] In accordance with s.16 of the Divorce Act, the court is only to consider the best interests of the child in making a parenting order. The court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s. 16(2). It is this section of the Divorce Act on which I rely to make an order restraining Dustin from engaging in the lemon-juice ritual with the child and/or telling the child that she smells.

[52] Section 16(3) sets out the factors the court is to consider in determining the best interests of the child which include, but are not limited to,

a. the child’s needs, given her age and stage of development, such as the child’s need for stability;

b. the nature and strength of the child’s relationship with each spouse;

c. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

d. the history of care of the child;

e. the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; and

f. any family violence.

[53] The history of care of the child indicates that both parents were integrally involved in her care. Sara’s affidavit sets out that Dustin insisted that he stay home with the child for 18 months and then she would begin daycare and he would have found employment.

[54] Once the pandemic began in March 2020, Sara began to work from home and was left to care for the child even though Dustin was not working. Once daycare reopened, Sara decided to keep the child at home because she is immune compromised.

[55] According to Sara, Dustin has abdicated his parenting responsibilities despite the fact that he does not work on a part-time or full-time basis. She swears that since the separation on August 7, 2022, Dustin has failed to meaningfully engage in the child’s day-to-day life, missing events for the child, such as attending friends’ birthday parties.

[56] Nonetheless, Sara acknowledges in her material that Dustin and the child have a strong bond and it is important for the child to have meaningful parenting time with him. She maintains that she has been the child’s primary caregiver since her birth.

[57] Sara has demonstrated that she is willing to support and encourage the child’s relationship with Dustin by the text messages she has sent him since October 29, 2022, encouraging him to have video chat time with the child and agreeing to them having in-person contact. Further, Sara’s Notice of Motion seeks to have a parenting schedule in place immediately for the child and Dustin to spend time together, although no overnight time until Dustin’s living circumstances are known.

[58] Given Dustin’s threats toward Sara and the hostility described by Sara, I am unable to determine at this time whether Dustin will be able and/or willing to communicate with Sara and co-operate with her on matters affecting the child. It is hard to understand why Dustin has indicated through text that he wants to see the child but has also been unavailable to have video chat time with her when it is offered or in-person parenting time. I am hopeful that once the parties begin to communicate on the co-parenting app, Dustin’s ability to communicate with Sara will be improved.

[59] Further, once Dustin has found alternative accommodation for himself, he will be in a position to begin to have overnight parenting time with the child.

[60] Sara seeks an order that the parties attend parenting mediation with Christine Kim. Pursuant to s.16.1(6) of the Divorce Act, the court may direct the parties to attend a family dispute resolution process. A family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including mediation. The mediation of a comprehensive parenting plan would be in the child’s best interests as it would consider a parenting plan that includes school holidays, religious holidays, special events and birthdays; health care professionals involved with the child; travel permitted with the child and who will be in charge of the child’s government issued documentation.

[61] In terms of decision-making responsibility, this case is in its infancy stage. There are no important decisions that need to be made for the child at this time. To date, Dustin has chosen not to participate in these proceedings. The issue of decision-making responsibility can be addressed at parenting mediation, failing which, Sara can return her motion before this court.

Order

[62] Accordingly, based on the above, this court makes the following temporary order:

a. Pursuant to s.16.1(6) of the Divorce Act, the parties shall make immediate arrangements to retain and attend parenting mediation with Christine Kim;

b. Pursuant to ss.16(2) and 16(4) of the Divorce Act,

i. the child shall have her primary residence with the applicant;

ii. Until the parties agree otherwise, the child shall have parenting time with the respondent on Saturdays from 8:00 a.m. to 6:30 p.m. commencing on November 19, 2022; and on Wednesdays from pick up after school to 6:30 p.m. commencing on November 23, 2022;

iii. The transfers on Saturdays and Wednesdays shall take place in front of the Shoppers Drug Mart located at 2345 Yonge Street, Toronto. The applicant shall designate a third party to handle the transfer on her behalf;

iv. The child shall have video conference parenting time with the respondent every day that she does not see him, on Sundays, Mondays, Tuesdays, Thursdays and Fridays, from 4:30 p.m. to 5:00 p.m., or whenever the child requests;

v. The parties shall immediately subscribe to the AppClose co-parenting application. The parties shall only communicate through the AppClose app and shall respond to one another within 24 hours. The parties shall ensure that their communication regarding the child is brief, contains pertinent information about the child and no denigrating comments about the other parent;

vi. The parenting schedule shall be reviewed when the respondent secures appropriate and alternative accommodation for himself and the child to consider whether overnight parenting time should be implemented.

vii. The respondent shall be restrained from engaging in the lemon juice ritual and/or cleaning the child’s armpits with lemon juice and/or telling her that she smells;

viii. Neither party shall discuss this litigation with the child;

ix. Neither child shall denigrate the other in front of the child; and

x. The parties shall have no contact with one another except through the AppClose application.

c. Pursuant to s.24(1) of the Family Law Act, the applicant shall be permitted to attend at a rental unit located at 55 Erskine Avenue, Apt. 505, Toronto ON M4P 1Y7 (“the matrimonial home”) on November 18, 2022 between 11:00 and 2:00 p.m. to retrieve any necessary belongings for her and the child. During this attendance, the respondent shall not be present at the matrimonial home.

d. The applicant shall transfer the sum of $10,000 by no later than 12:00 p.m. on November 18, 2022, which payment shall be characterized on a later date.

e. Pursuant to s.24(3) of the Family Law Act, the respondent shall remove his belongings and vacate the matrimonial home and return all keys and fobs in his possession by November 25, 2022 at 5:00 p.m. Thereafter, the applicant shall have interim and permanent exclusive possession of the matrimonial home and its contents.

f. Pursuant to s.36(2) and (4) of the Children’s Law Reform Act, the Ontario Provincial Police, the local police service, the Toronto Police Service, and/or any other law enforcement agencies having jurisdiction to enforce the provisions of this Order in the Province of Ontario and/or in the area where the child is located, shall assist as required in enforcing this order with respect to the parenting arrangements and shall take all action as required to locate, apprehend and deliver the child, if necessary. This order shall expire in 4 months from the date of this Order, pursuant to s.36(7) of the Children’s Law Reform Act.

g. The applicant’s motion for a restraining order against the respondent is dismissed, without prejudice to her right to return the motion after the urgent case conference if necessary.

h. The parties shall attend an urgent case conference on December 6, 2022 at 2:00 p.m.

M. Kraft, J.

Date Released: November 17, 2022

Trotta v. Chung, 2022 ONSC 6465

Case Summary

Nature of the Motion

Background

Procedural History

Communication between the Parties since Proceedings Began

Issues to be Decided

Issue one: Exclusive Possession of the Matrimonial Home

Issue Two: Restraining Order

Issue Three: Parenting Order

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 1

Legislation 3