Ortega Alvarez v. Duong, 2025 ONSC 369

Court File No.: FS-25-00047037-0000
Date: 2025-01-14
Court: Superior Court of Justice - Ontario
Before: Shanthi Mathen
Applicant: Valentina Ortega Alvarez
Applicant Counsel: Frances Monica Wood
Respondent: William H. Duong
Respondent Counsel: Self-represented
Heard: January 14, 2025

Endorsement

Motion for Relief

[1] The Applicant brings a motion for the following relief:

a. An order permitting this motion to be heard on an urgent basis prior to an Application being issued and prior to a Case Conference.

b. An order permitting this motion to proceed on a without notice basis.

c. An order that the motion materials and any resulting order shall be served on the Respondent as soon as practicable.

d. An order that this matter shall be returned to court within 7 days or on such other day as the court may order, for a review of any order made.

e. An order that on a temporary and without prejudice basis, the children of the marriage, namely C.M.D.O. (“C.M.”) born January 14, 2017, and E.R.D.O. (“E.R.”) born November 24, 2021, shall reside solely with the Applicant and that the Applicant shall make all major decisions for them.

f. An order that on a temporary and without prejudice basis, the Respondent shall have parenting time with the children of the marriage at the discretion of the Applicant.

g. An order that on a temporary and without prejudice basis, the Respondent shall not attend within 500 metres of 18 Steven Ave, North York, ON, M6B 3L8 (the parties’ family residence), the children’s school, Notre Dame de Grace, at 59 Clement Road, Toronto or otherwise within 250 metres of the Applicant or the children of the marriage.

[2] At the hearing, the Applicant withdrew items (e) and (f), above. She also agreed to modify her request for a restraining order to an order for no contact under Section 28 of the Children’s Law Reform Act (“CLRA”). For clarity, my analysis will address the issue of a restraining order.

Facts

[3] The parties began living together in the summer of 2016. There are two children of the marriage.

[4] The Applicant has not yet filed a family law Application with this Court.

[5] For this motion, the Applicant filed a sworn affidavit. She deposes the following:

a. Throughout the marriage, the Respondent has been verbally, psychologically, financially and physically abusive. She describes incidents of extremely concerning behaviour directed at the children including throwing objects at them.

b. The Applicant had hoped to plan a separation with as little conflict as possible. However, the Respondent recently suffered what the Applicant describes as a “psychotic episode”, as a result of which:

i. His abusive behaviour escalated dramatically;

ii. His threats of further harm escalated; and

iii. Police advised the Applicant that they intended to bring him to hospital, for a 24-hour evaluation period.

c. The Applicant has, for some time, employed a variety of techniques to keep herself and the children safe from the worst of the Respondent’s abuse. However, his behaviour in the last week escalated to the point that she no longer feels that she is able to do so.

d. Police have advised the Applicant to obtain an order which adequately protects the children, on an urgent basis, in the event that the Respondent was released from hospital over the weekend of January 11-12, 2025.

e. The Applicant described the following recent behaviour by the Respondent, which she interprets as escalatory and volatile:

i. Cutting up cables for cameras which he had previously installed in the home to spy on the Applicant. The Applicant deposes that she believes he did so after becoming aware that the cameras had captured his verbal and physical abuse;

ii. More hallucinations and delusions;

iii. Self-harm, including “cutting up his fingers and feet” which she observed daily; and

iv. Daily incidents of extremely verbal abuse including calling the Applicant “useless, a dumb bitch, a fucking cunt and other similar insult[s].”

f. The Applicant has advised the Respondent that she is safe with the children, but she is afraid of his reaction if she advises him of the motion prior to obtaining an order.

[6] At the hearing, counsel for Applicant advised the following:

a. The Applicant does not know whether the Respondent was actually admitted to the hospital. She does not believe he is there now.

b. The Applicant received some correspondence from the Respondent over the weekend of January 11-12. She is unsure where the Respondent is living: at the matrimonial home, at a hotel, at his parents’ house, or some other location.

c. On the day before this motion, the Applicant received some correspondence from the Respondent in which he expressed remorse, and said she was a “great mom”.

[7] The Court does not have evidence to support the above additional information, but includes it for context.

[8] The Applicant is concerned that, due to the volatility of his behaviour, the Respondent poses an immediate danger to the children. In particular, she is concerned that he might attend at the children’s school and take them away which no school official could prevent.

The Law

[9] Rule 14(4) of the Family Law Rules states: “No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.” This subrule is subject to an exception “if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”

[10] Rule 14 further provides:

(12) A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences. O. Reg. 114/99, r. 14 (12).

(14) An order made on motion without notice (Form 14D) shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court. O. Reg. 114/99, r. 14 (14).

(15) An order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise. O. Reg. 114/99, r. 14 (15).

[11] An urgent motion to a court without notice to a responding party is an exceptional remedy. It exists for exigent circumstances: M.(A) v. M.(J.), 2016 ONCA 644.

[12] Pursuant to s. 35(1) of the Children's Law Reform Act and s. 46(1) of the Family Law Act, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for their own safety or for the safety of any child in their lawful custody.

[13] Pursuant to s. 28(c) of the Children's Law Reform Act, the court may make an order limiting the duration, frequency, manner or location of contact or communication between any of the parties or between a party and a child.

[14] 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.

[15] 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.

[16] 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.

Analysis

[17] In considering the Applicant’s arguments, I am mindful that I have only her sworn statement untested by cross-examination. I have no information from the Respondent.

[18] Nevertheless, given that sworn testimony, I am persuaded that there is an “immediate danger to the health and safety” of the two children of the marriage. The Applicant has described in some detail both past incidents of abuse at the Respondent’s hands, as well as a recent escalation of his behaviour.

[19] I am satisfied on a balance of probabilities that, given his past behaviour and current volatility, the Respondent could react negatively to discovering that the Applicant has commenced a family law proceeding, posing an immediate danger to the children.

[20] I am therefore satisfied on a balance of probabilities that:

a. There are grounds to hear this motion in advance of an Application being served, or a case conference being held;

b. There are grounds to hear this motion without notice to the Respondent; and

c. To protect the children from immediate danger, it is appropriate to grant the Applicant and the children some interim protection from contact with the Respondent.

[21] I am not persuaded that this is an appropriate case for a restraining order. While the Respondent has demonstrated some concerning behaviour, he is not criminally charged. Nor is there any evidence indicating that he will not comply with court orders. The issuance of a restraining order has serious consequences for the affected individual. I am not satisfied that this case presents sufficient evidence to warrant that step, particularly in the context of a motion without notice. I find that there are other measures which can accomplish the same objective.

[22] I am satisfied that this is an appropriate case in which to issue a no-contact order under section 28 of the Children's Law Reform Act. The no-contact order shall reflect the terms requested by the Applicant in her Notice of Motion. The Respondent shall be served a copy of the Order, these reasons and the supporting material submitted to the court. The parties shall return before me on Tuesday January 28, 2025. The return date may be adjusted to a later date at the Respondent’s request.

Order

[23] In conclusion, I make the following order:

a. The Applicant’s request for permission for this motion to be heard on an urgent basis prior to an Application being issued and prior to a Case Conference is granted.

b. The Applicant’s request that this motion proceed on a without notice basis is granted.

c. On a temporary and without prejudice basis, pursuant to section 28 of the Children’s Law Reform Act, the Respondent William H. Duong shall not attend within 500 metres of 18 Steven Ave, North York, ON, M6B 3L8 (the parties’ family residence); the children’s school, Notre Dame de Grace, at 59 Clement Road, Toronto; or otherwise within 250 metres of the Applicant or the children of the marriage C.M. born January 14, 2017 and E.R. born November 24, 2021.

d. A copy of this order, the reasons for it, and the motion materials shall be served on the Respondent by email forthwith; and personally as soon as practicable.

e. This matter shall be returned to court on Tuesday January 28, 2025, before me if possible, for a review of the temporary order. The return date may be adjusted at the Respondent’s request. Any future return date shall be worked out between the parties and with the court in accordance with my schedule if possible.

f. Within fourteen days, the Applicant shall serve and file her Application, subject to any amendments she later may wish to make.

g. The Applicant shall prepare for my signature a Form 14D order that reflects the temporary order made today. The Form may be sent to Linda.Bunoza@ontario.ca. Without specific permission of the court, parties shall not otherwise send emails to this address.

Shanthi Mathen
Date: January 14, 2025