Court File and Parties

Court File No.: FS-18-00003264-0001 Date: 2024-02-08 Ontario Superior Court of Justice

Between: Mihaela Grosu, Applicant And: Costel Visinoiu, Respondent

Counsel: Kennedy Ojeogwu, for the Applicant Aristoteli Lebedev, for the Respondent

Heard: February 5 and 7, 2024

Rhinelander, J.

Reasons for Decision

[1] The only issue at trial was whether a temporary Restraining Order granted June 21, 2022, against Mr. Visinoiu should be made permanent. The Applicant seeks the Order pursuant to s. 46 of the Family Law Act (the FLA) and s. 35(1) of the Children’s Law Reform Act (CLRA).

[2] Mr. Visinoiu seeks an order dismissing the application.

Overview

[3] The parties were married in Romania on June 10, 2000. Shortly after, they had a son born December 9, 2000. In 2011, the family relocated to Canada. On December 2, 2011, their daughter was born. The children are currently ages twenty-three and twelve.

[4] Upon arriving in Canada, they stayed with friends until securing an apartment in Toronto. The family lived at this address for the duration of their marriage. The apartment is currently occupied by the Respondent. Mr. Visinoiu is the sole signatory on the lease, although it is clear the apartment was rented for the family unit at the time of signing.

[5] Mr. Visinoiu was the sole provider during their marriage. He is an engineer who has always worked within the profession. During the marriage, his work required him to travel within Canada and on occasion in other countries. Throughout this time, he maintained and paid the rent for the apartment, and household bills.

[6] At some point prior to June 2018, Ms. Grosu initiated court proceedings in the Ontario Court of Justice seeking full custody of the children, child support, and spousal support. The Court records indicate an uncontested trial was held and Ms. Grosu was successful in her applications by order of Justice Murray on June 6, 2018, and June 12, 2018.

[7] On June 18, 2018, Ms. Grosu filed an application for divorce at the Superior Court of Justice. Mr. Visinoiu’s address is listed as “unknown” and an email address of *************@*****.com is the only form of contact. Within the application, it lists Mr. Visinoiu as a resident of Montreal, Quebec.

[8] On June 29, 2018, Justice Moore of the Superior Court of Justice ordered substituted service on Mr. Visinoiu at the email address listed above. The materials relied upon for that motion are not before this court and there is no evidence why substituted service was ordered. Although Ms. Grosu advised the Court that she and Mr. Visinoiu separated in January, 2017, he continued to pay rent and maintained the apartment that Ms. Grosu remained in.

[9] The divorce was granted on October 22, 2018, by Justice Paisley, effective November 22, 2018. Mr. Visinoiu testified he was unaware that Ms. Grosu had filed for divorce until well after the divorce had been granted.

[10] Despite the divorce being granted, the parties continued to live together until November 23, 2020. There was no evidence before me that the parties were living separate and apart, and if they had separated in 2017 as stated by the Applicant in her divorce application, when they reconciled. In fact, the evidence before me was that the parties resided together for approximately twenty years and there was no interruption in their marriage.

[11] On November 23, 2020, an altercation occurred between Ms. Grosu and Mr. Visinoiu and the police were contacted. Mr. Visinoiu was arrested and charged with assault. He was released on an undertaking with conditions, that barred him from having contact with Ms. Grosu, and attending within 500 metres of their residence.

[12] The charge against Mr. Visinoiu was withdrawn on June 7, 2021. Mr. Visinoiu successfully completed a partner assault response program and was ordered to enter a section 810 peace bond for a period of one year. Terms and conditions required him to have no contact with Ms. Grosu or to attend within 200 metres of any place where he knows her to live, work, go to school, or frequent.

[13] The peace bond expired on June 6, 2022. Mr. Visinoiu contacted one of the children to advise them he would be moving back to the apartment. On June 15, 2022, Mr. Visinoiu returned to the residence. Ms. Grosu called the police. She was advised that Mr. Visinoiu was entitled to be at the apartment as there were no conditions or court orders preventing him from being there and he was on the lease.

[14] Ms. Grosu testified she did not feel safe in the home upon Mr. Visinoiu’s return. She left the apartment with the children and went to a shelter. On May 11, 2022, in anticipation of the expiration of the peace bond, Ms. Grosu had filed an ex parte application seeking a restraining order. The application was not heard until June 21, 2022, which was after Mr. Visinoiu had moved back into the residence and Ms. Grosu had left. Justice Papageorgiou granted a temporary restraining order and adjourned the matter to June 28, 2022, to allow for service on Mr. Visinoiu.

[15] The matter did not proceed on June 28, 2022, as Mr. Visinoiu had just retained counsel and requested an opportunity to provide materials in response.

[16] The matter was next up on July 5, 2022, before Justice Diamond. Once again, the matter did not proceed as Ms. Groscu had now retained counsel and wished to reply. Justice Diamond acknowledged that Mr. Visinoiu had moved back to the apartment, the lease was in his name, and he made the lease payments. Justice Diamond ordered the current status quo to remain on an interim and without prejudice basis pending further agreement of the parties or court order.

[17] After a few more adjournments, the motion was heard before Justice Faieta on October 18, 2022. Viva voce evidence was called to supplement the written materials. Justice Faieta ordered the temporary restraining order of June 21, 2022, to continue pending trial.

Summary of the Evidence

Mihaela Grosu

[18] Ms. Grosu relied on her affidavits of June 3, 2022, and July 13, 2022. This was supplemented by previous court orders and endorsements and her viva voce testimony at this trial. She testified about the parties’ relationship throughout the marriage and focussed on five specific episodes of physical abuse and the verbal abuse that followed. These incidents included hair pulling, punching, and striking to her body, arms, and legs, and an incident where she suffered a broken nose in Romania after he slammed a car door into her face. Photographs of the latter incident were introduced in court. The most recent incident occurred on November 23, 2020, which resulted in Mr. Visinoiu charged with assault.

[19] Ms. Grosu described this incident as having occurred while she was attending an on-line course during the pandemic. She said the incident was witnesses by the instructor. The instructor was not called as a witness in these proceedings.

[20] This incident resulted in Mr. Visinoiu being subjected to a court order preventing him from having contact with Ms. Grosu and attending at the apartment except for one occasion in the company of police to retrieve personal belongings. Although Mr. Visinoiu was required to find other accommodation throughout this timeframe, he continued to pay the rent.

[21] Ms. Grosu testified that she is still recovering from the years of abuse and is very fearful for her own safety. She believes a permanent restraining order will provide her with peace of mind and protection from Mr. Visinoiu in her day-to-day activities.

[22] Ms. Grosu was asked if Mr. Visinoiu had ever threatened to kill her, and she said “no, he just does violence”.

[23] She agreed Mr. Visinoiu did not breach any of the non-communication/contact provisions of the different court orders over the past three years.

[24] Ms. Grosu confirmed that despite the problems in her relationship with Mr. Visinoiu, she has continued to encourage his relationship with their children. To summarize her words, the difficulties or problems are between her and Mr. Visinoiu and thus she has continued to encourage the children to have a relationship with their father. She believes the children should feel loved and have both parents in their lives.

[25] In cross-examination, Ms. Grosu told the court that Mr. Visinoiu continues to see their daughter and parenting time is arranged through a third party. Ms. Grosu has never requested that parenting time be supervised. She agreed that their daughter stays over at Mr. Visinoiu’s as the issues are between the parties and not about the children.

[26] Ms. Grosu testified that she and Mr. Visinoiu stopped living together when she contacted the police in November 2020. There was no explanation proffered about a reconciliation after the divorce or with respect to Ms. Grosu’s assertions in her divorce application that the parties had separated in January 2017, and continued to live separate and apart when she filed for divorce June 18, 2018. It is also unclear how and when Mr. Visinoiu returned to the residence after the divorce.

[27] In her application for the temporary restraining order, the date of separation was noted as the date the divorce became effective, ie. November 22, 2018. Yet in her testimony in these proceedings, she told the court she has lived with him for twenty years. No efforts were made to explain these three inconsistencies.

[28] I am confused and troubled at how the divorce was granted when it appears the parties continued to live together, even when Mr. Visinoiu travelled for work. During his absences, he maintained their home as his permanent residence and continued to pay the bills; further, the parties continued to live together for two years after the divorce.

[29] Despite this gap in the evidence, I accept Ms. Grosu’s evidence that the marriage had its difficulties, and she was subjected to abuse, both verbal and physical.

Luminita Guta

[30] Luminita Guta is the godmother to the parties’ daughter. She was called as a witness to confirm the incidents of abuse. However, Ms. Guta was not present for any of these events. She did, however, receive copies of photographs of Ms. Grosa’s injuries from the incident in Romania.

[31] Ms. Guta further testified that on one occasion she observed Mr. Visinoiu trying to restrain himself when being verbally abusive to Ms. Grosa. It is acknowledged and recognized by the court that most incidents of intimate partner violence occur in the privacy of the home outside the view of witnesses.

[32] As stated above, I accept the relationship had significant problems that resulted in Ms. Grosu being subjected to both verbal and physical abuse.

Respondent - Costel Visinoiu

[33] Mr. Visinoiu testified that he never received notice that Ms. Grosu had filed for divorce and only became aware much later after the divorce had come into effect. He stated they had been married approximately twenty years and lived together until November 23, 2020, when he was charged with assault.

[34] Mr. Visinoiu acknowledged assaulting Ms. Grosu on that date but disagreed with her description of the event. He denied any other incidents of physical abuse. The Respondent acknowledged Ms. Grosu suffered an injury to her nose in Romania but is adamant it was an accident.

[35] Having acknowledged Ms. Grosu’s injury in Romania, it was put to him in cross-examination that he mocked Ms. Grosu and made a comment she deserved it. Mr. Visinoiu’s response was to laugh at the question and respond that “half of what Ms. Grosu had testified to was untrue”.

[36] Mr. Visinoiu’s attitude and responses in cross-examination were very different from when he was asked questions by his counsel. Mr. Visinoiu continued to interrupt counsel for the Applicant, maintained he did not understand questions, failed to permit counsel an opportunity to finish questions, and made editorial comments about the questions being posed.

[37] On more than one occasion, Mr. Visinoiu was cautioned to stop interrupting the court and counsel. He was sarcastic and avoidant which made him less credible.

[38] I can accept all, some, or part of a witnesses’ evidence. Where the evidence of the parties differs, I prefer the evidence of Ms. Grosu.

Analysis

[39] A restraining order may be made under s. 35 of the CLRA and s. 46 of the FLA. Under both sections, the applicant must demonstrate “reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody.”

[40] In G.P. v. R.P. [1], Justice Sherr sets out an overview of the legal principles the court must apply in determining whether to grant a restraining order 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. Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365. c. 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. d. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195. e. Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra. f. 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. g. The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at para 38 [2]. h. The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326. i. 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. j. 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. k. 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: Edwards v. Tronick-Wehring, 2004 ONCJ 195. l. 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; Jumale v. Mahamed, 2022 ONSC 566. m. 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; M.H.S. v. M.R., 2021 ONCJ 665. n. 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.H.S. v. M.R., supra. o. 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.

Position of the Parties

[41] The Applicant, Ms. Grosu seeks a final restraining order pursuant to s. 46 of the FLA and s. 35(1) of the CLRA. She requests this order to prevent Mr. Visinoiu from contacting her, coming near her or her home, place of employment, and/or anywhere he may know her to frequent or attend. Ms. Grosu argues that a restraining order is necessary to give her peace of mind and act as a resource that would protect her from Mr. Visinoiu.

[42] Ms. Grosu testified that she has been subjected to domestic violence throughout the marriage. She claimed Mr. Visinoiu was physically, emotionally, and verbally abusive to her. That this abuse took place in front of the children; including occasions where their daughter was in her arms.

[43] Ms. Grosu says she still lives in fear, and the abuse has an impact on her to this day. She expressed concern that his anger and actions are unexpected and she does not know when to expect it. Having a restraining order, she argued will allow her to not look over her shoulder all the time. She will be moving to a new apartment soon and does not want to live in fear.

[44] Mr. Visinoiu disagreed with the suggestion the marriage was replete with abuse. He argued the only intentional act of violence was the incident on November 23, 2020. His factual description differs from Ms. Grosu, but he acknowledged pushing her and pulling her out of a chair.

[45] He attended and successfully completed a PARS program. He was subject to bail, a peace bond, and most recently the temporary restraining order for more than three years. At no time did he breach any of the court ordered terms.

[46] He has parenting time with his daughter almost every weekend unsupervised. She stays at his residence, and there has been no suggestion that Ms. Grosu has any concerns for their daughter’s safety when she is with Mr. Visinoiu. Parenting time was arranged between a mutual family friend, but is now confirmed through their son, who is 23, or directly with their daughter.

[47] It is clear the parties’ marriage suffered significant difficulties and abusive behaviour. The decision I must make is whether a restraining order should issue permanently.

[48] The factors articulated by Ms. Grosu must be balanced against the factors raised by Mr. Visinoiu:

a. The parties have not lived together since Mr. Visinoiu’s arrest on November 23, 2020. b. The last incident of abuse was on that date, over three years ago. c. The Respondent complied with the terms of his undertaking. d. The Respondent completed a PARS program. e. The Respondent complied with the terms of the peace bond. f. The Respondent complied with the terms of the temporary restraining order. g. There were no allegations that the Respondent has physically harmed the children. h. The Respondent exercises regular parenting time almost every weekend from Friday to Monday with his daughter. i. A restraining order could adversely affect Mr. Visinoiu’s employment opportunities.

[49] The Applicant’s claim for a restraining Order is dismissed. The temporary restraining order of June 21, 2022, confirmed on October 18, 2022, is vacated.

[50] In closing written submissions, the Applicant sought an alternate remedy if the Court was to dismiss the application for a restraining order. This was raised for the first time after all the evidence had been tendered. No application to amend her pleadings was requested. The Applicant asked the Court to consider varying the parenting order issued in the Ontario Court of Justice on June 6, 2018, without notice to Mr. Visinoiu, pursuant to section 28 of the CLRA to include a no contact term through the parenting order. Section 28(1) specifically begins with “The court to which an application is made under section 21”, which in this case is the Ontario Court of Justice. I expressed concerns during the trial about the proceedings in 2018, including the divorce itself based on evidence heard before me and exhibits filed on this trial regarding service of materials on Mr. Visinoiu. I will not vary or impose terms relating to contact related to parenting time and nor do I have jurisdiction to do so in any event.

[51] Despite Mr. Visinoiu’s attitude during cross-examination, I am satisfied he understands it is in his best interests, and his children, to not attempt to communicate with the Applicant or attend at places where she may be. It was made very clear to Mr. Visinoiu that behaviour that is construed as harassment, molesting, or annoying the Applicant will result in further court attendances. Should Mr. Visinoiu decide to ignore advice provided to him by counsel and others, there is nothing that prevents Ms. Grosu from renewing her application should there be any change in circumstances.

Costs

[52] To some extent both parties had a degree of success in the context of the entire action. A temporary restraining order was imposed on June 21, 2022, and confirmed on October 18, 2022, after viva voce and documentary evidence was produced. The issuance of the temporary restraining order was properly founded on the facts at that time. With the passage of time, and the further “cooling off” period, I found the order is no longer necessary.

[53] If either party seeks costs, they shall serve and file their written submissions by February 16, 2024. The other party will then have until February 26, 2024, to serve and file their written response (not to make their own costs request). The submissions should not exceed two pages, not including any offer to settle or bill of costs.

Rhinelander J. Date: February 8, 2024

Footnotes

[1] G.P. v. R.P., 2023 ONCJ 388 at paragraph 22.

[2] The court notes that there is jurisprudence 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, 2013 ONCJ 254, supra. 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.).