Court File and Parties

Court File No.: FS-25-00047014-0000
Date: 2025-01-15
Court: Superior Court of Justice - Ontario

Applicant: Jennifer Lynn Hodgson
Respondent: Shane Jason Hodgson

Before: Laverne A. Mathen
Counsel:

• Jennifer Ryan, for the Applicant
• Shane Jason Hodgson – self-represented

Heard: January 15, 2025

Endorsement

Relief Sought

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

a. An Order that this motion be permitted to proceed on an emergency and ex parte basis under Rule 14(12)(d) of the Family Law Rules, i.e., on a without notice basis and before a case conference on the grounds that service of the applicant’s application and notice of motion would have serious consequences.

b. If required, an order that the Form 14A affidavit be accepted at 11 pages in length (8 pages of narrative and 3 pages of exhibits).

c. Per Section 46(1)-(3) of the Family Law Act, an order restraining the respondent, Shane Jason Hodgson, from:

• i. Coming within 100 meters of the applicant or any place she would ordinarily be expected to be;
• ii. Coming within the area bordered by Burnhamthorpe Rd. on the north; The East Mall on the east; Bloor St. W. on the south; and Renforth Drive on the west (which includes 25 Eva Road and the children’s schools); and
• iii. Directly or indirectly contacting or communicating with the applicant Jennifer Lynn Hodgson, except through:
  • 1. text or email and only for purposes directly related to the children, and
  • 2. through family law counsel and the court to address issues related to this proceeding.

d. If required:

• i. An order for vacant possession of 110-25 Eva Road, Etobicoke ON, M9C 2A7 (“110-25 Eva Road”) and the contents therein to the applicant Jennifer Lynn Hodgson, effective immediately.
• ii. In the alternative, an Order for leave pursuant to Rules 60.03 and 60.10 of the Rules of Civil Procedure for the issuance of a writ of possession of 110-25 Eva Road and the contents therein in favour of the applicant, effective forthwith.
• iii. A direction to the Ontario Provincial Police, local police, and/or any other officers involved with Enforcement to hereby forthwith enforce vacant possession (as requested above) in favour of the applicant and assist in the orderly removal of the respondent from 110-25 Eva Road.

e. An order that the applicant receive her costs of this motion on a full indemnity basis.

[2] At the hearing, the Applicant withdrew her request for items (d)(i) and (ii), and indicated that they would be the subject of an urgent motion on notice. She also agreed that should I determine that ex parte relief is required, a no contact order under section 28 of the Children’s Law Reform Act (CLRA) was an appropriate first step instead of a restraining order. She asks that the Respondent not communicate with her; and not attend at her current residence or two locations where she is known to be on a weekly basis: Bloordale Middle School on Monday nights for ball hockey; and Lakeshore Collegiate Institute Dome on Sunday mornings for soccer.

Facts

[3] The parties started living together in 2008, married in 2020 and separated on September 14, 2024. There are two children of the marriage born, respectively, in 2009 and 2014. The Respondent also has a 25-year-old son from another relationship.

[4] The Applicant has filed but not yet served an application for a divorce and other relief on January 10, 2025.

[5] The Applicant deposes to a fraught, volatile relationship over the years. Recent events of concern include:

a. While she was on vacation in Cuba (without the children) in September 2024, the Respondent made threats that she interpreted as serious enough to not return to their matrimonial apartment. She deposes that the Respondent “repeatedly contacted me and our Cuban friends via increasingly harassing and threatening text messages and FaceTime, some calls and texts sent in the middle of the night.” The children came to live with her on her return to Canada.

b. The Respondent has accused the Applicant of having an affair.

c. The Respondent appears incapable of identifying or controlling his anger.

d. The Applicant attached screenshots of a Facetime conversation between the Respondent and a family friend in Cuba that she says contain threats against her. As this material is hearsay, I will not consider it further.

e. The Respondent is regularly aggressive and abusive to her and the children.

f. The Applicant is afraid the Respondent will harm her for bringing this matter to the Court.

g. Upon her return from Cuba, the Applicant did not feel safe at the parties’ apartment and went to live with family. She made a complaint to the police, who declined to do anything on the basis that the Respondent had at most made “veiled threats”.

h. In the interim period, the Respondent changed the locks on the matrimonial home. At the hearing, the Applicant gave sworn testimony that her key no longer worked and when the children who were inside the apartment let her in, the Respondent accused her of “trespassing”.

i. The Applicant has effectively been barred from the family home. She does not believe the parties can live together safely.

j. On September 17, 2024, the Applicant saw the Respondent “hiding in the bushes at their son’s baseball game watching [her].” She deposes that he then sent her a text asking where her wedding ring was.

k. On October 28, 2024, the Applicant deposes, the Respondent suddenly appeared while she was picking up her son from ball hockey, reached into the car and grabbed her hand.

l. The Applicant believes that the Respondent regularly denigrates her to their children.

m. The Applicant is concerned because the Respondent is currently acting as a surety for his adult son, who has been charged with a number of offences involving drugs and firearms. As a result, the adult son may be living in the matrimonial home which is a two-bedroom apartment. The Applicant deposes that she has never had a good relationship with her stepson; she does not know what his conditions are; and the Respondent reacted with anger to her expressed concerns about the situation. While this concern is most relevant to the Applicant’s desire to secure access to the matrimonial home, it is included for context.

The Law

[6] 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 in (4.2):
“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.”

[7] Rule 14 further states:

(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).

[8] 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.

[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 their own safety or for the safety of any child in their lawful custody.

[10] Pursuant to s. 28(c) 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 or between a party and a child.

Analysis

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

[12] In this case, the Applicant argues that Rule 14(12)(d) applies because “service of a notice of motion would probably have serious consequences.” Though she did not specifically plead it, I take it as inherent in her submissions that the situation is one of urgency requiring a motion to be heard before service of her Application and, therefore, before a case conference, as contemplated under Rule 14(4.2).

[13] I am persuaded on a balance of probabilities by the Applicant’s evidence that the Respondent is volatile and unpredictable; and he might have an extremely negative reaction to being served with notice of the Applicant’s motion to secure possession of the matrimonial home. The Applicant has given numerous examples of inappropriate behaviour, that, taken together, are threatening.

[14] The risk faced by the Applicant exists with respect to service of her Application and her requests for any interim relief.

[15] I acknowledge that the Respondent has not been charged with an offence, that his son’s charges are not relevant to this motion and that the Respondent does not have a history of defying court orders. For that reason, I believe that a no contact order during the period that the parties’ proceedings get underway is an appropriate alternative to a restraining order. This will provide the Applicant with some security. Should the Respondent react to service of the application or the no contact order in a defiant or threatening manner, that can be considered at the mandatory return for this motion, or at other proceedings. Should the Respondent respond in a non-threatening manner, that can also be taken into consideration. I note that the Applicant does not seek to prevent the Respondent from seeing their children.

[16] I am therefore persuaded that:

a. Pursuant to Rule 14(4.2), hearing this motion in advance of service of the Application and before a case conference is appropriate;

b. Pursuant to Rule 14(12)(d), proceeding on a without notice basis is required to avoid the risk of serious consequences to the Applicant that might arise from service of this motion; and

c. The facts warrant temporarily preventing the Respondent from contacting the Applicant.

Order

[17] In conclusion, I made the following order:

a. The Applicant’s request that this motion be heard in advance of service of her application and before a case conference is granted.

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

c. The Applicant’s Form 14A affidavit is accepted.

d. The Applicant’s request for a restraining order is dismissed without prejudice.

e. Pursuant to section 28 of the CLRA, without prejudice to either party and on a temporary basis the Respondent, Shane Jason Hodgson, shall not:

i. Directly or indirectly contact or communicate with the Applicant Jennifer Lynn Hodgson, except through: 1. text or email and only for purposes directly related to the children, and 2. through family law counsel and the court to address issues related to this proceeding;

ii. Come within 200 metres of the following places at the following times: 1. 6291 Starfield Crescent, Mississauga ON L5N 1X3 (the applicant’s temporary residence), at any time; 2. Bloordale Middle School, 10 Toledo Rd, Toronto ON M9C 2H3 on Mondays between 6:00 pm and 9:00 pm; and 3. Lakeshore Collegiate Dome (LCI), 290 Birmingham St, Toronto ON M8V 3L1 on Sundays between 9:00 am and 12:00 noon;

f. A copy of this order, the reasons for it, and the motion materials shall be served on the Respondent forthwith.

g. This matter shall be returned to court on Thursday, January 30, 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.

h. No later than two days before the return motion the parties shall serve and file their materials which shall comply with the Rules with regard to form and content. The Applicant shall be limited to an Affidavit detailing information relevant to the no contact order that has occurred after January 10, 2025. The Respondent may file a reply Affidavit no later than one day before the motion.

i. The question of costs is reserved to the return motion or other future proceeding.

j. The Applicant shall prepare for my signature a Form 14D order that reflects the 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.

Laverne A. Mathen

Date: January 15, 2025