NEWMARKET COURT FILE NO.: FC-24-616-00 DATE: 20240412 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
K.B. Applicant – and – H.S. Respondent N. Guatto, Counsel for Children and Family Services for York Region (the Society), Third Party on the motion C. Smuk, Counsel for Office of the Children’s Lawyer (on behalf of A.B.), Third Party on the motion
M. Polisuk, Counsel for the Applicant Respondent – Not Present HEARD: April 12, 2024
WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged . The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Ruling on Restraining Order Motion
A.J. HIMEL J.:
Relief Requested
[1] The mother brings an urgent motion, without notice, seeking a restraining order to protect herself and three children, A.B. (age 9.5), A.B.-S. and F.B.-S. (twins age 20 months). She seeks this order as against H.S., who is the step-father of A.B. and the biological father of the twins (the step-father/father).
[2] The matter currently before the Court is a Status Review Application (SRA) pursuant to the Child Youth and Family Services Act, 2017. It relates only to A.B. The step-father /father is not a party in that proceeding.
[3] The children currently reside with the mother and step-father/father. A.B. previously lived with the maternal grandmother.
[4] The mother initially sought the restraining order within the ongoing CYFSA matter. However, when the Society raised the issue of notice and jurisdiction, the mother orally amended her restraining order motion to include relief pursuant to the Children’s Law Reform Act, R.S.O. 1990, c.C. 12 (“CLRA”) and the Family Law Act, R.S.O. 1990, c.C.3 (“FLA”). The mother commits that she will commence an Application pursuant to the CLRA, if I decline to grant the restraining order pursuant to the CYFSA.
Background
[5] The Society has had ongoing involvement with the family for an extended period. Richard Kendall, the current child protection worker, has worked with the family since March 2020. The Society has concerns relating to a wide variety of issues, including the mother’s challenges, conflict between the mother and the maternal grandmother and, more recently, the children’s exposure to conflict between the mother and step-father/father.
[6] Today is the third attendance at court since April 4, 2024, when counsel for A.B. (the “OCL”) raised issues about significant conflict in the home and other safety matters. A.B. feels unsafe continuing to reside with the mother and step-father/father.
[7] The Society was aware of some of the child’s concerns for weeks or months. However, the extent of the child’s concerns was disclosed on April 3, 2024. The Society is worried about A.B. remaining in the home, and has concerns about the twins as well.
[8] At the April 4, 2024, attendance I flagged serious child protection issues and we discussed options to address same. These include:
(a) the step-father/father voluntarily removing himself from the home and the mother and children residing at that property;
(b) the mother and the children relocating to a shelter, an apartment, a third party’s residence or a hotel, and the step-father/father remaining in the home; or
(c) the children being taken by the Society to a place of safety (likely a foster home pending any other longer term alternative).
[9] Mr. Kendall attests that the Society has taken steps this week to develop a safety plan. One option, being that the father voluntarily remove himself from the home would enable the mother and children to remain there. That plan would provide some measure of stability. However, the step-father/father is unwilling to vacate the home temporarily (or just on weekends).
[10] The mother, while initially resistant, agrees to take the children to a shelter.
[11] When the shelter plan was discussed with the step father/father, he indicated an intention to contact police and report that the mother has kidnapped the children (if she takes that step).
[12] The father’s responses to the Society’s attempts to safety plan are highly problematic, not child-focused and may be signs of underlying issues with power and control.
[13] The Society and the mother submit that the current situation is highly volatile and places the children at a serious risk of harm. The OCL agrees, as do I.
[14] While I had expected the Society to commence a Protection Application (PA) in respect of the twins and returnable yesterday, the PA has yet to be issued. I am advised that it will be served and filed shortly. The anticipated first return date is April 18, 2024, when the SRA returns to court. If the Society wishes to proceed with a motion for a restraining order, it will be heard at that time.
Law and Analysis
[15] The Court’s authority to grant a restraining order in the context of a family law dispute can be found in the CYFSA, the CLRA and the Family Law Act, R.S.O., 1990 (c.F.3) (FLA).
[16] Pursuant to section 137 of the CYFSA, the Court may restrain or prohibit a person’s access or contact with the children and may include directions as appropriate to implement the order and protect the children. The Court shall not make such an order unless notice of the proceeding has been served personally on the person to be named in the order.
[17] Pursuant to section 35 of the CLRA, the Court may make a restraining order if the party requesting the order has reasonable grounds to fear for his/her own safety and the safety of the children in his/her lawful custody. Provisions may include limits on communication and contact, as well as exceptions.
[18] Pursuant to section 46 of the Family Law Act, the Court may make an order restraining a person from communicating with a person with whom he/she cohabited and the children, or attending within a specified distance of one or more locations. Exceptions can be included in the order.
[19] Family violence, power imbalance and control issues are serious and red flags respecting safety that cannot be ignored. The 2021 changes to the CLRA require courts to consider the impact of family violence. There is ample evidence of family violence here.
[20] The threshold question to determine if a restraining order should be ordered is as follows: Does the mother have reasonable grounds to fear for her own safety or for the safety of the children?
[21] The mother’s evidence is as follows:
(a) her relationship with the step-father/father has been physically and verbally violent;
(b) the step–father/father assaulted her four times, and she has defended herself and, at times, argues back;
(c) on April 11, 2024, the step-father/father shoved her away from the door;
(d) several weeks ago, he grabbed the mother by the sweater and used it to choke her;
(e) on February 24, 2024, the step-father/father stomped on her foot when one twin was going to have a bath;
(f) the step-father/father engages in verbal abuse almost daily, and in front of the children. He calls her terrible names and alleges that she is a retard;
(g) the step-father/father also engages in name-calling and insults that are directed at A.B.;
(h) the step father/father admits to drinking and driving; and
(i) the mother is scared of the step-father/father. He refuses to leave the home voluntarily, even for a short period of time.
[22] The child, A.B.’s evidence, as stated to the Society’s worker on April 3, 2024 is as follows:
(a) things are not going well at home. The mother and step-father/father fight in the children’s presence, probably two or three times per week;
(b) the step-father/father yells that she will get kicked out of the house and need to live on her own. The child hears this threat every time the parties fight;
(c) the step-father/father shoved her, threatened (with an open hand) to slap her, and tried to hit her with a broom;
(d) the step-father/father kicked the mother with his shoe on, and the mother has hit the father in the “shunt” (from what she overheard);
(e) while the parties are fighting, the child is watching her sisters to ensure they are safe and do not get hurt;
(f) A.B. is scared that she will be hit and yelled at; and
(g) the child’s home life is a 1 out of 5 as the mother always yells and threatens to hit her. The mother hits her (including a recent incident).
[23] The mother has met the test to obtain a temporary order for a restraining order on her behalf and that of the children. There are reasonable grounds for the mother to fear for her own safety and that of the children. The restraining order shall continue until April 18, 2024, unless it is terminated (as a consequence of the commencement of the PA, or otherwise), or varied by the Court.
[24] All parties may make submissions at the return of the restraining order motion/the first attendance on any restraining order sought by the Society, so long as their materials are served and filed as set out in the order below.
[25] For safety reasons, I am prepared to make the order on a without notice basis.
[26] My determinations in respect of the authority to make a restraining order, without notice, are as follows.
[27] I find that I have the necessary jurisdiction to make the order on a without notice basis, notwithstanding the restriction imposed by section 137 of the CYFSA, given the over-arching principle of section 1 of the Act. The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children.
[28] A provision that requires personal service of a restraining order motion where there is a serious risk of harm to one party and the children, if the other party were to learn of the motion before the order was made, violates the paramount purpose of the CFYSA.
[29] However, I need not need to rely on section 1 of the CYFSA, as the mother commits to commence a CLRA application in respect of all three children. The CLRA (and FLA ) do not require that notice be given to a responding party on a motion for a restraining order.
[30] Given the volatile situation, the need to protect the children from the ongoing high conflict (as articulated by the mother and the Society), and the step-father/father’s recent statement that he will call the police and report a kidnapping if she goes to a shelter, I am prepared to make the requested order in advance of the issuance of the CLRA Application. A restraining order is required.
[31] On a final note, a PA relating to the twins should have been issued months, or at least weeks, ago. The restraining order does not address the many child protection issues that arise from the mother and step-father/father’s care of the children. Judicial oversight in respect of the twins is (and certainly was) required (well before now).
Order to Go
- Temporary order in accordance paragraph 1 of the Notice of Motion dated April 11, 2024.
- This order is made pursuant to the Children’s Law Reform Act.
- The mother shall forthwith commence an Application pursuant to the Children’s Law Reform Act.
- The motion returns to Court on April 18, 2024 at 11:30 a.m., by Zoom. The Society may serve and file a restraining order coincident with the PA. The step father/father may serve and file a 14a that is no more than five pages, double space, 12 font and one five-page third party affidavit. These shall be served and filed by April 16, 2024 at 4:00 p.m. The mother/Society may file a three-page updating affidavit by April 17, 2024 at 4:00 p.m. Filing shall be done by the online portal.
- The step father/father may obtain independent or summary legal advice and additional assistance, if needed. Options include: (a) limited free advice may be available through Legal Aid Ontario: 905-967-0921 or the Client Service Centre at 1-800-668-8258 or email gendcfamnewmascj@lao.on.ca .; (b) document preparation services by law students who are supervised by family lawyers is available at no costs to clients who qualify at Family Justice Centre PBSC (probonostudents.ca); (c) affordable legal services may be available at ASC Private Duty Counsel Project: https://ascfamily.com; and (d) limited scope services are available through the Limited Scope Services Project: https://www.familylawlss.ca/.
- This Ruling is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.
The Honourable Justice A. Himel Date: April 12, 2024