Reasons on Motion for Summary Judgment

Court File No.: FC-21-702
Date: 2025-01-02
Ontario Superior Court of Justice

Between:
Rebecca Joan Reid, Applicant
– and –
Derrick David Peters, Respondent

Appearances:
Sandra La Selva, for the Applicant
Derrick David Peters, for himself

Heard: December 18, 2024

Judge: M. Bordin

Overview

[1] This application has been before the court for just over three years. The applicant mother, Rebecca Joan Reid, seeks summary judgment for the following final orders:

a. The applicant shall have sole decision-making with respect to Sunni Teresa Reid Peters, born August 11, 2019 (“Sunni” or “the child”);

b. The respondent's supervised parenting time with the child shall be in the sole discretion of the applicant as to frequency, duration, location, and level of supervision, including that there be no parenting time for as long as the details of the respondent's criminal charges and sentencing are unknown;

c. Neither party shall speak negatively of the other party to and/or in the presence of the child and they shall encourage their respective partners and extended family members to do likewise;

d. Child support payments by the respondent commencing on September 1, 2022;

e. The parties shall equally share s. 7 expenses under the Child Support Guidelines, O. Reg. 391/97;

f. The applicant shall change the child’s surname to “Reid” and the requirement of the respondent’s signature on the application for the change of name shall be dispensed with;

g. The requirement for the respondent’s signature on applications for passports for the child shall be dispensed with;

h. The requirement for the respondent’s approval for any travel by the child outside of Canada shall be dispensed with;

i. The respondent shall not harass, annoy, or molest the applicant;

j. The respondent shall be restrained from coming within 100 meters of the applicant's residence or place of employment, in accordance with s. 46 of the Family Law Act, R.S.O. 1990, c. F.3;

k. All communication between the parties shall be done through a third party; and

l. The respondent shall pay the applicant’s costs of the application.

[2] On September 16, 2024, Bingham J. adjourned this motion for summary judgment to December 18, 2024, peremptory against the respondent and set a timetable for the motion.

[3] The applicant has served, filed and uploaded an appropriate Form 35.1 affidavit as well as an affidavit in support of the motion dated October 28, 2024, and a factum in accordance with Bingham J.’s endorsement.

[4] The respondent did not serve or upload any responding affidavits or a Form 35.1 affidavit by November 15, 2024, and a factum by December 6, 2024, as ordered by Bingham J.

[5] On or about December 10, 2024, the respondent uploaded to Case Centre a very brief Answer containing two paragraphs of “evidence”. The applicant says she was not served with this Answer, that it is not a sworn affidavit, and that the respondent should not be allowed to rely on it. The self-represented respondent indicated that he thought he was filing the document he was required to file. He confirmed that it set out the information that he wanted the court to have for the summary judgment motion. He does not explain why it appears to have been filed late.

[6] The applicant did not want the hearing adjourned. The motion proceeded on the basis that I would consider the information in the Answer. The respondent was told that he could not give evidence from counsel table, and that the “evidence” he could rely on was limited to the information set out in his recently uploaded Answer and in the applicant’s affidavit. He could otherwise make submissions on the relief sought by the applicant in her motion.

[7] The applicant was similarly cautioned that, given Bingham J.’s endorsement, the only evidence she could rely on was that contained in her affidavit of October 28, 2024, not the prior affidavits that she had filed.

Facts

[8] The parties were in a relationship from August 4, 2010, until June 16, 2021, and were never married. Sunni is their only biological child from the relationship.

[9] The applicant has been Sunni's primary caregiver since her birth. The respondent has not seen or spoken to Sunni since December 2021, when he exercised a two-hour supervised visit in a community setting.

[10] On October 13, 2021, the respondent was arrested and charged with distributing intimate images without consent.

[11] On May 12, 2022, the respondent was charged with an additional 14 charges in relation to the applicant and other women. His conditions of release included a no contact order with the applicant. There has been no contact between the parties since the criminal charges were laid against the respondent. The outcome of the criminal charges is not known.

[12] On January 5, 2022, the parties entered into temporary minutes of settlement with respect to the respondent’s supervised parenting time at Pathstone Mental Health in Welland, Ontario. The respondent has not exercised his right to supervised parenting time.

[13] On August 11, 2022 Gambacorta J. made the following temporary orders:

a. The respondent shall provide his 2022 year to date proof of income and all paystubs from January 2022 to the present within 30 days.

b. The respondent shall pay child support for the child based on his 2022 income of $25,100.00 at a rate of $200.00 per month payable commencing September 1, 2022, and on the first of every month thereafter.

[14] The respondent has paid the child support ordered by Gambacorta J.

[15] On January 19, 2024, D.L. Edwards J. made a temporary order permitting the applicant to relocate with Sunni to Hamilton, Ontario and granted temporary sole decision-making to the applicant as well as temporary primary residence to the applicant.

[16] The applicant has relocated to Hamilton with Sunni and continues to be her primary caregiver. Sunni is well adjusted in her new community, is up to date with medical and health appointments, and is currently enrolled in gymnastics and dance. Sunni is doing well at school, as is also indicated in her kindergarten report. A letter dated October 10, 2024 from psychologist Erin Freeburn was filed, which also supports the conclusion that Sunni is doing well.

[17] On January 19, 2024, D.L. Edwards J. also made a temporary order that the previously ordered supervised parenting time at Pathstone should resume as soon as possible. As noted, the respondent has not exercised his right to supervised parenting time.

[18] D.L. Edwards J. ordered the respondent to pay the costs of the motion to the applicant in the amount of $2,000.00 inclusive of HST within 60 days. The respondent has not paid the costs ordered.

[19] The information contained in the respondent’s Answer relates to the period before December 21, 2021. The Answer does not dispute the evidence of the applicant regarding the events following December 2021. The respondent notes that, historically, he was involved in Sunni’s care. He states that there is no prior history of police involvement in their 11-year relationship. He notes that the safety and well-being of Sunni has always been his “utmost priority” and he has never compromised her safety. The respondent denies instances of domestic violence and irrational behaviour/temper.

Summary Judgment

[20] 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: r. 16(1) of the Family Law Rules, O. Reg. 114/99. Pursuant to r. 16(2), a motion for summary judgment under r. 16(1) may be made in any case that does not include a divorce claim.

[21] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, para 49.

[22] When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial will generally not be proportionate, timely or cost effective: Hryniak, para 50. On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that he can fairly resolve the dispute: Hryniak, para 57.

[23] I must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, I may resort to the additional fact-finding powers to decide if a trial is required. In such a case, 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 weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interest of justice for such powers to be exercised only at a trial: r. 16(6.1).

[24] The court may, for the purposes of exercising any of the powers set out in r. 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation: r. 16(6.2).

[25] Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. Further, pursuant to r. 16(4.1), the responding party 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. The judge is entitled to assume that the parties have put before her or him all the evidence that they would be able to adduce at trial.

Analysis

[26] The applicant asserts a history of family violence. Family violence is defined in s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and s. 18(1) and (2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The sections provide similar, though not identical, definitions and set out identical examples of the kind of conduct which constitutes family violence.

[27] The only evidence in the applicant’s affidavit supporting this assertion is that the parties separated in part due to the respondent’s “anger/temper issues”. No specifics are provided to flush out this vague statement. Further, the applicant references the October 13, 2021 charge against the respondent of distributing intimate images without consent, as well as the subsequent 14 charges against the respondent relating to the applicant and other women. There is no evidence about which of the 14 charges relate to the applicant. There is no evidence of the details of the charges. Presumably, the applicant could have provided the court with details of family violence if they exist.

[28] The allegations of family violence are not sufficiently made out in the limited affidavit evidence before me to conclude there is no genuine issue requiring a trial as to family violence.

[29] Considering the best interests of the child and the factors set out in s. 24 of the Children’s Law Reform Act, I conclude that, based on the materials filed and without resort to the powers in r. 16(6.1), there is no genuine issue requiring trial with respect to decision-making.

[30] There is no evidence to suggest that joint decision making is appropriate. There is no evidence of the ability of the parties to communicate. Indeed, there is a no-contact order which has been in place since May 12, 2022, due to the respondent’s bail conditions. The evidence is that there has been no contact between the parties since then. Further, the respondent has had no involvement in Sunni’s life for approximately three years and the applicant has been the child’s primary caregiver during that time. The interim order of D.L. Edwards J. granting the applicant temporary sole decision-making has been in place for almost a year.

[31] I find that the applicant should have sole decision-making authority for Sunni.

[32] The facts also readily support the conclusion, based on the materials filed and without resort to the powers in r. 16(6.1), that there is no genuine issue requiring trial with respect to the continuation of the status quo of the child’s primary residence with the applicant and a continuation of the current supervised parenting arrangement. Both of those arrangements have been previously determined to be appropriate on an interim basis. The materials disclose no basis to deviate from that status quo. Conversely, there is a genuine issue requiring a trial as to whether the applicant should be granted complete and sole discretion to determine the duration, location, and level of supervision of the respondent’s parenting time on the facts and based on the submissions before me. There is a genuine issue for trial regarding the relief sought by the applicant of suspending parenting time for as long as the details of the respondent's criminal charges and sentencing are unknown. The applicant did not provide any evidence explaining why she cannot provide information about the details of the respondent’s criminal charges, charges in which she alleges she was involved.

[33] The applicant asks that the temporary without prejudice child support order of Gambacorta J., dated August 11, 2022, be turned into a final order. The respondent is not opposed to this relief. On the materials filed and without resort to the powers in r. 16(6.1), there is no genuine issue requiring trial with respect to child support. Nothing has changed since Gambacorta J.’s order. Neither the applicant nor the respondent has led evidence to suggest that the respondent’s income has changed. There shall be a final order for child support on the same terms as Gambacorta J.’s order.

[34] On the materials filed and without resort to the powers in r.16(6.1), there is no genuine issue requiring trial with respect to the relief sought that neither party shall speak negatively of the other party to and/or in the presence of the child and they shall encourage their respective partners and extended family members to do likewise. This relief was not opposed by the respondent. The order shall be granted.

[35] I reach the same conclusion with respect to the relief requested that all communication between the parties be done through a third party. At the hearing, the applicant tendered the name of her best friend, Colleen Collins, as the third-party intermediary. The respondent confirmed he has no difficulty with communicating through a third party or with Ms. Collins acting as the third-party intermediary.

[36] Given my conclusion on decision-making and primary residence as well as the complete lack of involvement of the respondent in Sunni’s life for the past three years, on the materials filed and without resort to the powers in r. 16(6.1), there is no genuine issue requiring trial with respect to the orders sought dispensing with the respondent’s signature on passport applications for Sunni and the respondent’s approval for Sunni to travel outside Canada. I also note that in submissions, the respondent conceded that he trusts the applicant’s decision making on these issues and does not believe she would put their child in harm’s way.

[37] The applicant seeks an order allowing her to change Sunni’s surname. She relies on the criminal charges and the possible sentences that could be imposed as a result of those charges. When asked, the applicant could not provide the court with a reference to the specific statutory or legal requirements for a name change. At this point, the outcome of the criminal charges against the respondent remains unknown. No details of the criminal charges have been provided. On the materials provided to the court, I cannot conclude that there is no genuine issue for trial as to changing Sunni’s surname. The relief is not granted and remains a live issue in the proceedings. The applicant may, if so advised, seek the relief in a further motion for summary judgment.

[38] The applicant seeks a final order that the parties shall share expenses set out in s. 7 of the Child Support Guidelines, O. Reg. 391/97, on a 50/50 basis retroactive to June 16, 2021.

[39] The applicant has tendered some evidence that Sunni is enrolled in dance and gymnastics as well as some evidence of the cost of gymnastics. However, I do not have sufficient evidence before me to allow me to make a determination of whether an order for payment of s. 7 expenses should be made on this summary judgment motion. I have no evidence of the applicant’s current income or means, or the respondent’s income since 2022. I have no evidence of the spending pattern of the parents in respect of the child during cohabitation, or of any special needs Sunni may have. I have no evidence of childcare expenses, medical and dental insurance premiums, or health related expenses.

[40] As pointed out by the Court of Appeal for Ontario in Titova v. Titov, 2012 ONCA 864, para 23:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[41] Summary judgment with respect to s. 7 expenses is not granted. The issue remains outstanding and may be pursued by the applicant in the ordinary course or on another motion for summary judgment.

[42] The applicant seeks a restraining order and an order that the respondent not harass, annoy, or molest the applicant.

[43] At para. 44 in Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506, Paulseth J. set out the following principles pertaining to restraining orders in family court proceedings that are relevant on this motion before me:

• Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Nieweglowski, 2007 ONCJ 469.
• 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.
• It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.
• 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.
• The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, 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.).
• 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, 2011 ONSC 1452.
• 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: Purewal v. Purewal, 2004 ONCJ 195.
• 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.
• 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.
• 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.
• 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.
• A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

[44] Additional principles are set out in the following cases:

a. Noriega v. Litke, 2020 ONSC 2970, paras 37-39: There appear to be both subjective and objective elements to the concept of “reasonable grounds to fear”. Bare assertions of fear are not sufficient. More is required to establish reasonable grounds to fear.

b. Ciffolillo v. Nieweglowski, 2007 ONCJ 469, paras 23-24: The conduct must be of a sort that a reasonable person would regard as disturbing, or as a source of anxiety or irritation to a substantial degree – not trivial or a casual annoyance. It is a question of degree.

[45] The evidence is insufficient to find that there is no genuine issue requiring trial with respect to a restraining order and an order that the respondent not harass, annoy, or molest the applicant. First, I note that for almost three years there has been no contact between the parties. The evidence tendered by the applicant is nowhere close to satisfying the test for granting a restraining order which comes with serious criminal consequences if there is a breach. There is not even a bare assertion of subjective fear in the applicant’s affidavit, let alone evidence of reasonable grounds for the fear. There is no evidence of a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing the applicant or evidence of persistence of any such conduct.

Disposition

[46] I make the following final orders:

a. The applicant shall have sole decision-making responsibility and primary residence of the child, Sunni Teresa Reid Peters, born August 11, 2019;

b. The respondent shall have supervised parenting time with the child, Sunni Teresa Reid Peters, born August 11, 2019, as follows:

i. On alternate Tuesdays from 4:30 p.m. to 7:30 p.m.;

ii. At Pathstone Mental Health’s Welland location, municipally known as 1604 Merrittville Hwy, Welland, ON L3B 5N5;

iii. The applicant shall be responsible for the child's transportation to and from Pathstone.

c. Neither party shall speak negatively of the other party to and/or in the presence of the child and they shall encourage their respective partners and extended family members to do likewise;

d. The respondent shall pay child support for the child, Sunni Teresa Reid Peters, born August 11, 2019, based on the respondent’s 2022 income of $25,100.00 at a rate of $200.00 per month commencing January 1, 2025, and on the first of every month thereafter;

e. There shall be a support deduction order to issue;

f. The requirement of the respondent's signature on any applications for a passport for the child Sunni Teresa Reid Peters, born August 11, 2019, is dispensed with;

g. The requirement of the respondent's approval for any travel by the child, Sunni Teresa Reid Peters, born August 11, 2019, outside of Canada, is dispensed with; and

h. All communication between the parties shall be through the third party, the applicant’s friend, Colleen Collins, unless the parties agree in writing to substitute another third party.

[47] The applicant seeks her costs of the motion (but not the action) on a substantial indemnity basis in the amount of $3,800 plus HST. The respondent’s position is that he does not have the means to pay costs and that the applicant has more financial resources than he does.

[48] The applicant does not put forward any reasons for substantial indemnity costs. Costs are payable on a partial indemnity basis. I fix the fair and reasonable amount of costs the respondent is to pay to the applicant for the motion at $2,000 plus HST.

M. Bordin

Released: January 2, 2025