COURT FILE NO.: FS-21-43998-00
DATE: 2023 03 10
SUPERIOR COURT OF JUSTICE - ONTARIO (Milton)
RE: J.P.C., Applicant
and
R.R.L.C., Respondent
COUNSEL: Stephen Eaton, Counsel for the Applicant
Maurice Mattis, Counsel for the Respondent
E N D O R S E M E N T
[1] The parties appeared before me on the Applicant’s motion for exclusive possession of the matrimonial home and for an interim restraining order against the Respondent: Family Law Act, R.S.O. 1990, c. F.3., s. 24(1)(b), 46(1). This matter is scheduled to go to trial on the substantive issues later this month.
[2] Both parties filed affidavits on the motion, as did one of the adult children. The parties agree that the home is jointly-owned, that the Applicant has lived in the home with the three adult children since 2015, and that the Applicant pays all the carrying costs. The parties also agree that the Respondent moved to the UK in 2015 and returned occasionally, staying in the master bedroom while the Applicant slept in the basement. They also agree that the Respondent advised the Applicant in January 2023 of his intention to return to the matrimonial home in March pending the trial.
[3] To get a restraining order, the Applicant 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. 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, 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, at para. 19.
[4] Therefore, 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 (S.C.), at para. 31-32. While the Applicant need not establish that the Respondent has harassed or harmed her, I must be able to connect or associate his actions or words with her fears: Khara v. McManus, 2007 ONCJ 223, at para 33.
[5] Here, I have no trouble concluding the Applicant and children’s subjective fear of the Respondent is directly related to his conduct since returning from the UK. The Respondent admits that immediately upon returning to the home, he forced his son’s bedroom door open and removed his belongings into the hallway. He says that his behaviour was justified because he had a legal right to occupy the home as a joint owner. While this is true, the Respondent admits that he was granted entry to the home by one of the children. As such, I have no trouble concluding that his subsequent actions were designed to intimidate the Applicant and children.
[6] Indeed, one of the children called the Halton Regional Police to report the incident, but no charges were laid after the Respondent advised them that he jointly owned the home. Since then, the Respondent has become even more empowered to do as he pleases. For example, I accept the Applicant’s evidence that he has been verbally abusive towards her telling her to “Shut the fuck up,” and that he harasses her friends when they visit the home.
[7] One of the children has also sworn an affidavit recounting Respondent coming up to him nose-to-nose and threatening to “bitch slap” him. Again, the Respondent admits the incident took place but says that his actions are justified because the child was trying to bully him and because “if you confront bullies, they will always back down.” Ultimately, the child concludes, “everyone is afraid to move around or be free in the home due to my father’s presence…His anger issues and his overall behavior is extremely stressful for all of us.”
[8] The Respondent’s conduct is unacceptable and threatening on its face. The Applicant and the children’s fears for their psychological and physical safety are reasonable. I accept the Applicant’s evidence that she is worried that the Respondent’s conduct might escalate as we approach the trial where tensions will undoubtedly run high. It is not safe to leave the Applicant and children vulnerable to the Respondent’s angry outbursts whilst in a pressure cooker environment.
[9] I am prepared to grant the restraining order sought by the Applicant. The order for exclusive possession flows directly from my decision to impose a restraining order pending resolution of the matter on a full and final basis.
[10] Order to go as drafted by counsel and reviewed and signed by this court.
Mandhane J.
DATE: March 10, 2023
COURT FILE NO.: FS-21-43998
DATE: 2023 03 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.P.C., Applicant
AND
R.R.L.C., Respondent
COUNSEL: Stephen Eaton, for the Applicant
Maurice Mattis, for the Respondent
ENDORSEMENT
Mandhane J.
DATE: March 10, 2023