COURT FILE NO.: FS-23-33715
DATE: 20240531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sivatharshini Visakaperumal
Applicant
– and –
Sivatharsan Seevaratnam
Respondent
Dilani Gunarajah, for the Applicant
Jyotsana Katoch, for the Respondent
HEARD: May 23, 2024
Mathen, J.
[1] The Applicant, Sivatharshini Visakaperumal (“Applicant”), has brought the within motion for a restraining order or, in the alternative, a no contact order against the Respondent, Sivatharsan Seevaratnam (“Respondent”).
[2] The parties began a common law relationship in 2015 or 2016 (the parties dispute the date). They have one child, H., born March 8, 2017. The parties separated some years later (again, they dispute the date). There are ongoing proceedings in this Court regarding their family law issues.
[3] The parties’ history is fraught. In August 2022, the Respondent was arrested on a charge of uttering threats. The next scheduled appearance on this matter is in July, 2024. The Respondent expects this criminal matter to be dropped following his completion of the Partner Assault Response (“PAR”) program.
[4] The Applicant’s Notice of Motion seeks the following relief:
a. An order that the Respondent shall not have any contact with the applicant directly or indirectly except in court proceedings.
b. An order that the Respondent shall not go within 100 meters of 9 Berkham Road, Toronto or any place the Applicant is known to work or attend except for supervised parenting time.
c. An order that the Respondent pay costs of this motion in the amount of $7500.00 inclusive of disbursements.
d. Other relief deemed by this Court to be honourable and just.
[5] In her factum, the Applicant sought a restraining order under section 46 (1) of the Family Law Act ("FLA") and under section 35 of the Children’s Law Reform Act ("CLRA"). At the hearing, counsel acknowledged that she seeks, in the alternative, a no contact order under section 28 of the CLRA.
[6] In these circumstances, I do not find that a restraining order is appropriate. I do find that there is a basis for a no contact order.
[7] The parties have a complicated dispute before this Court dealing with parenting, property division and support. A trial management conference is set for October 2, 2024. In their materials, the parties have recounted in detail a number of issues pertaining to that broader dispute.
[8] The narrow question before me is whether there is a basis to issue a restraining or a no contact order.
[9] Pursuant to s. 35(1) of the CLRA and s. 46(1) of the Family Law Act (“FLA”) 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.
[10] Pursuant to s. 28 of the CLRA the court may make an order “limiting the duration, frequency, manner or location of contact or communication between any of the parties.”
RELEVANT FACTS NOT IN DISPUTE
[11] During their relationship the parties lived together at 9 Berkham Road. This property is registered in the name of the Respondent alone. After the parties separated, the Respondent lived in the basement.
[12] The Respondent was arrested in August, 2022. On September 28, 2022 he signed an undertaking agreeing to have no contact with the Applicant or to come within 100 metres of 9 Berkham Road. He has not lived there since.
[13] The Respondent was in his vehicle on Berkham Road on September 5, 2022. There is no record of the police having been notified.
[14] The undertaking described in paragraph 12 of these reasons will expire on or about July 22, 2024.
[15] The Applicant is not currently employed. The Respondent works in the construction industry.
[16] Once the condition described in paragraph 12 of these reasons expires, the Respondent intends to return to 9 Berkham Road.
[17] The Respondent has offered to cease contact with the Applicant (save for court and parenting matters) if she vacates 9 Berkham Road which he considers to be exclusively his.
PARTIES’ POSITION
[18] The Applicant alleges abuse by the Respondent over a period of years. She describes a number of serious incidents, including being kicked by the Respondent when she was seven months pregnant with their child, H. She says that some of the violence has or did occur in front of H. The Applicant claims that the Respondent yelled vulgarities at her and at her family members. She alleges that the Respondent uttered death threats against her.
[19] The Respondent denies all of the above allegations. He admits to verbal disputes with the Respondent and others but denies that he yelled vulgarities at anyone. He notes that the Applicant filed a police complaint only in August 2022, and not after the several other prior allegations.
[20] The Applicant says she is fearful of what might happen should the Respondent return to 9 Berkham Road. She says that his vehicle was observed on this street on two occasions. The Respondent admits to one of those occasions but says it was prior to the undertaking referred to in paragraph 12 of these reasons. He denies the other.
[21] A great deal of the Respondent’s pleadings is directed to the legal status of 9 Berkham Road and whether the Applicant has any right to remain there.
REASONING
[22] 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": McCall v. Res, 2013 ONCJ 254. The test is both subjective and objective.
[23] A restraining order is a serious tool with highly negative effects on the person subject to it. It must not be employed as a precautionary measure, but only in the face of a clear and demonstrable risk: Ciffolillo v. Niewelglowski, 2007 ONCJ 469; A.H. v. M.T., 2023 ONSC 2365.
[24] The presence of a no contact order does not by itself justify issuing a new one: A.H. v. M.T, supra.
[25] A respondent need not have actually committed an act, gesture or words of harassment before a restraining order may be imposed.
[26] In borderline cases, the court must consider other protections that may be available if a restraining order is not granted: M.H.S. v. M.R., 2021 ONCJ 665.
[27] The allegations made against the Respondent are found in the Applicant’s affidavit. This affidavit evidence, while a basis for legitimate concern, has not been tested, and is denied by the Respondent.
[28] I accept that the Applicant has a degree of subjective fear for her safety in light of the Respondent’s conduct. Nevertheless, I am not persuaded that it is appropriate to issue a restraining order at this point in time. The Respondent has been charged on one occasion with uttering threats. There have been no further allegations of violence since his arrest.
[29] In my opinion, this is a case where a no contact order under section 28 of the CLRA can achieve similar goals to a restraining order.
[30] In making this order, I am mindful that much of the dispute between the parties focuses on the status of 9 Berkham Road. That issue is currently before this Court.
[31] I am mindful of the animosity that currently exists between the parties.
[32] Finally, I am mindful of the need to maintain a stable home environment for the child, H.
DISPOSITION
[33] I made the following temporary orders pursuant to section 28 of the CLRA, which shall be in place until further court order or agreement of the parties.
a. The Respondent Sivatharsan Seevaratnam shall not have any contact with the Applicant Sivatharshini Visakaperumal directly or indirectly except in court proceedings.
b. The Respondent Sivatharsan Seevaratnam shall not go within 100 meters of 9 Berkham Road, Toronto or any place the Applicant Sivatharshini Visakaperumal is known to work or attend except for supervised parenting time.
c. While the Applicant Sivatharshini Visakaperumal continues to reside at 9 Berkham Road, Toronto she shall ensure that the animals in the house are cared for, which animals belong to the Respondent Sivatharsan Seevaratnam.
[34] Should the parties be unable to agree upon costs, counsel may make written submissions on the issue. These are to be confined to 3 pages plus attachments of bills of costs and any offers to settle. The Applicant shall deliver their submissions within 10 days of this decision. The Respondent shall deliver their submissions within 10 days of receiving the Applicant’s submissions. The Applicant shall then have an additional 3 days for reply. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
C. Mathen J.
Released: May 31, 2024
COURT FILE NO.: FS-23-33715
DATE: 20240531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sivatharshini Visakaperumal
Applicant
– and –
Sivatharsan Seevaratnam
Respondent
REASONS FOR decision
MATHEN J.
Released: May 31, 2024