Court File and Parties

NEWMARKET COURT FILE NO.: FC-23-462-00 DATE: 20240411 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Natalia Castro, Applicant AND: Jairo Jimenez, Respondent AND: Lyda Del Pilar Castro Larrea, Respondent

BEFORE: The Honourable Madam Justice A.M. Daurio

COUNSEL: V. Matthews, Counsel for the Applicant L. Baumal, Counsel for the Respondent Jairo Jimenez G. Perry, Counsel for the Respondent Lyda Del Pilar Castro Larrea

HEARD: April 10, 2024

Ruling on Motion

Brief Background and Undisputed Facts

[1] The Applicant and the first Respondent (“Jairo”) are former spouses.

[2] The Applicant has a new spouse and a child of that spouse. That spouse and the child are not subject to the Application.

[3] The second Respondent (“Lyda”) is the aunt (and adopted sister) of the Applicant. She is also the current spouse of Jairo.

[4] There are no children subject to this Application, nor any parenting Orders related to any children between any of the spouses or parties.

[5] Lyda resided with the Applicant and acted as a nanny for the Applicant’s child between December 2020 and August 2022. There was a falling out (the nature of which is disputed), and the relationship has been difficult since that time (for reasons that are disputed).

[6] The only claim against Lyda in this proceeding is a request for a non-harassment/restraining Order.

Motion Before the Court

[7] Lyda brought a motion seeking to dismiss the single claim against her due to lack of jurisdiction.

[8] The Application, as filed, seeks a restraining Order against Lyda pursuant to the Family Law Act (FLA).

[9] The Applicant served a draft amended Application in August 2023 replacing the legislative authority for this claim from the FLA to the Children’s Law Reform Act (CLRA). While the amended pleading is not before the Court, the Applicant conceded in submissions that there is no jurisdiction under the FLA for the Applicant to seek a restraining Order against Lyda.

[10] The motion proceeded with the understanding that the Applicant intended to pursue a restraining Order against Lyda pursuant to section 35 of the CLRA.

[11] The fact that the amended pleading was not properly before the Court does not prevent this Court from considering the motion pursuant to Rule 16 of the Family Law Rules (FLR).

[12] The jurisdictional question is a legal issue, and it would not be an efficient use of Court resources to delay the motion only to rectify a procedural irregularity. Particularly given that the parties all agreed on the question before the Court, which was as follows:

Does the Court have jurisdiction pursuant to section 35(1) of the CLRA to grant a restraining Order where there are no parenting Orders, nor claims for parenting Orders, before the Court?

[13] The Court is not tasked with determining whether a restraining Order would be made in this case, if jurisdiction is established.

Lyda’s Position

[14] It was the position of Lyda that the Court does not have jurisdiction under the CLRA to make a restraining Order against a person who is not a parent, not a former spouse and where there is no child before the Court.

[15] It was her position that the CLRA is legislation with the distinct purpose of resolving matters involving children before the Court; and that a restraining Order under the CLRA is a tool meant to be used only in relation to parenting Orders and disputes.

The Applicant’s Position

[16] The Applicant took the position that this Court could not decide the issue to dismiss her claim for a restraining Order in a summary fashion, and pursuant to Rule 16 of the FLR, because there are triable issues at stake. On the contrary, she requested that the Court make a “boomerang” summary final restraining Order, based on the strength of her evidence.

[17] Her primary argument, as set out in her factum, was based on a presumption that the Court had jurisdiction to make the Order requested. She focused on the legitimacy of her claim for a restraining Order, and whether the facts supported an Order being made. The Applicant did not provide any caselaw in her factum on the issue of jurisdiction.

[18] However, as the Court pointed out to Counsel for the Applicant during submissions - if the Court does not have jurisdiction to make the Order sought, that is the end of the inquiry.

[19] Late on the night prior to the motion, the Applicant filed a compendium. The compendium also contained references to the weighing of evidence and determination of a cause of action; but added an excerpt from K.A. v. C.A., 2022 ONSC 1887, a case dealing with jurisdiction on this very issue. I reference the case below.

[20] As it related to jurisdiction, the Applicant took the position that Lyda met the definition of a “family member” under section 18 of the CLRA ( “family member” includes a member of a household of a child or of a parent, as well as a dating partner of a parent who participates in the activities of the household ). Because Lyda was a family member, she believed that the wording of section 35 should be read broadly and with due consideration for the legislative concerns around family violence.

[21] It was her view that whether or not a child was before the Court is irrelevant. She claimed that a plain reading of section 35 of the CLRA permitted the Court to make a restraining Order against any person, and the Order does not have to include a child.

[22] The Applicant took the position that the question before the Court is a novel issue and she believed that this case should be distinguished from the current reported decisions.

[23] In her view, the distinguishing features of this case included the fact that Lyda is the spouse of Jairo, that Lyda resided with the Applicant and the Applicant’s child for a period of time, and that Lyda is a member of the Applicant’s family.

The Law

Summary Judgment

[24] Summary Judgment Motions in family law proceedings are governed by Rule 16 of the Family Law Rules:

Summary judgment

When available

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

Evidence required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

Evidence of responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

Evidence not from personal knowledge

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

No genuine issue for trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

Oral evidence (mini-trial)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

Only issue question of law

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

Order giving directions

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

Motion for summary decision on legal issue

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).

Evidence on motion for summary decision of legal issue

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16 (13).

[25] The purposes of Part III of the CLRA are set out at section 19 of the Act:

Purposes, Part III

19 The purposes of this Part are,

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 2020, c. 25, Sched. 1, s. 2.

[26] Within Part III of the Act, section 35(1) of the CLRA provides the Court with jurisdiction to make restraining Orders, as follows:

Restraining order

35 (1) 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. 2009, c. 11, s. 15.

[27] Faieta J., in K.A. v. C.A., 2022 ONSC 1887, addressed the issue of jurisdiction to make a restraining Order under the CLRA where no parenting Orders existed.

[28] In that case, the Applicant was the Respondent’s mother, and the Respondent was the father of a 14 year old child who was residing with the Applicant. While the child’s parents had separated, no parenting Orders existed.

[29] In her request for a restraining Order, the Applicant raised several serious concerns relating to the Respondent’s behaviour.

[30] Faieta J. declined to make a restraining Order and stated the following:

[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.

Analysis

Summary Judgment

[31] In this Court’s view, the issue before me is a question of law. Rule 16(8) of the FLR mandates that I decide the issue and make a final Order.

[32] The factual underpinnings in this matter that relate to the question of jurisdiction (as set out at the beginning of my decision) were not in dispute.

[33] Further, it was not disputed that there are no parenting Orders in place and no parenting Orders are being sought. In fact, it is not disputed that there is no child subject to this proceeding.

[34] Given that there were no disputed facts, nor was there any disputed evidence on this narrow issue, no credibility findings need to be made and no weighing of conflicting evidence is necessary.

[35] Proceeding with this motion pursuant to Rule 16 is appropriate as there is no genuine issue requiring a trial.

[36] The Applicant’s claim that a triable issue existed was not supported by the record.

Jurisdiction

[37] For the reasons that follow, the Court finds that it does not have jurisdiction to make a restraining Order pursuant to the CLRA where there are no parenting Orders (nor claims for parenting Orders) before the Court.

[38] In my view, the facts set out in K.A. v. C.A., 2022 ONSC 1887 were more closely aligned with the purposes of the CLRA than the case at bar – and the Court declined jurisdiction.

[39] In that case, the Applicant was a member of the Respondent’s family who was caring for the Respondent’s child. The Applicant expressed fear of the Respondent in relation to both herself, and the child. However, due to the absence of any parenting Order, Faieta J. found that a restraining Order pursuant to the CLRA was not available.

[40] In the case before me, while Lyda is a member of the Applicant’s family, there are no parenting Orders in place related to the Applicant’s child (who is not the child of either of the Respondents) and there are no claims for parenting Orders in any of the pleadings.

[41] This Court agrees with Faieta J.’s analysis of the purposes and scope of Part III of the CLRA, and finds that there is no jurisdiction under the CLRA for this Court to grant the relief sought by the Applicant against Lyda.

[42] In addition to the legislative impediments set out above, this Court is mindful that family Courts in this province are already overburdened. To do as the Applicant requests would open the floodgates to allow anyone who has a child in their care to seek a restraining Order against any other family member to whom they have close ties pursuant to the CLRA.

[43] The expansion of the CLRA in this way is not necessary. There are other ways for members of the public to seek protection Orders.

Costs

[44] As Lyda was clearly the successful party in this motion, she is presumptively entitled to costs. The Court is inviting submissions on costs related to Lyda’s involvement in these proceedings.

Order

1. This is a final Order.
2. This Order is made pursuant to the Family Law Rules.
3. On consent, the Applicant, Natalia Castro’s, claim for a restraining Order against the Respondent, Lyda Del Pilar Castro Larrea, pursuant to section 46 of the Family Law Act is withdrawn for lack of jurisdiction.
4. Pursuant to Rule 16(12)(c)(i) of the Family Law Rules in determining a question of law, this Court finds that where there are no parenting Orders in place, and no claims for parenting Orders before the Court, the Court does not have jurisdiction to make a restraining Order pursuant to 35(2) of the Children’s Law Reform Act.

Costs

5. If the parties cannot agree on the issue of costs regarding the Respondent, Lyda Del Pilar Castro Larrea’s, involvement in these proceedings, I shall consider a request for costs.
6. The Respondent Ms. Larrea shall serve written submissions on the other parties and file electronically, within 10 days of this decision being released.
7. The Respondent, Mr. Jimenez, shall serve written submissions on the other parties and file electronically, within 15 days of this decision being released.
8. The Applicant shall serve written submissions on the other parties and file electronically, within 20 days of this decision being released.
9. Submissions shall be emailed to my Judicial Assistant at nurit.suzana@ontario.ca.
10. Submissions shall be limited to three pages exclusive of the Bill of Costs and Offers to Settle.
11. There shall be no right of reply.
12. If any party fails to file submissions in accordance with this Order, no costs shall be payable to that party.

The Honourable Justice A.M. Daurio Date: April 11, 2024