K.D. v. K.S., 2022 ONCJ 73 (CanLII). There are two motions before the Court: one filed by the Applicant Mother (the “mother”) and one filed by the Office of the Children’s Lawyer (“OCL”). Both seek restraining orders against the Respondent Father (the “father”) pursuant to s. 46 of the Family Law Act (“FLA”).
K.D. v. K.S., 2022 ONCJ 73 (CanLII)
ONTARIO COURT OF JUSTICE
CITATION: K.D. v. K.S., 2022 ONCJ 73
DATE: 2022 01 18
COURT FILE No.: Toronto DFO-17-15649-000
B E T W E E N :
K.D.
APPLICANT
— AND —
K.S.
RESPONDENT
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Before Justice Maria N. Sirivar
Heard on August 5, 2021 by videoconference Reasons for Judgment released on January 18, 2022
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G. Alexander Novak...................................................................... counsel for the applicant
Arthur C. Brown.................................................................... counsel for the respondent(s)
Alawi Mohideen................................... counsel for the Office of the Children’s Lawyer,
legal representative for the children
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SIRIVAR J.:
INTRODUCTION
1. There are two motions before the Court: one filed by the Applicant Mother (the “mother”) and one filed by the Office of the Children’s Lawyer (“OCL”). Both seek restraining orders against the Respondent Father (the “father”) pursuant to s. 46 of the Family Law Act (“FLA”).
2. The mother requests that the father be restrained from coming within 500 metres of her home and any place the father knows the mother or the children to be or where he ought to know them to be. She also asks that he be restrained from communicating directly or indirectly with her or with the children. The OCL’s seeks the same relief but only with respect to the children.
3. The motions were adjourned multiple times to allow the father time to retain new counsel and for counsel to properly prepare. The parties consented to restraining order, on a temporary without prejudice basis, as a condition of the adjournments.
BACKGROUND AND PROCEDURAL HISTORY
4. The parties were married on September 2, 2002 and separated on April 13, 2017. They have two children, B.O. and T.O., who were 10 and 11 when the motions were argued.
5. At the time of separation, the father was charged with assaulting her and was subjected to release conditions that restricted his contact with the mother. The mother deposes that she had been assaulted by the father several times prior to separation and had attempted to leave the relationship.
6. The mother alleges that shortly after the father was charged, he breached the conditions and forced his way into her apartment. The father was charged again with failure to comply with his recognizance, criminal harassment, obstruct police, and assault (against the mother). More restrictive bail conditions were imposed.
7. Two months after separation, in June 2017, it is alleged that the father again forced his way into the mother’s home and confined her for four days. The children were present. On July 2, 2017, the father was again charged with assault, failure to comply with recognizance 3x, criminal harassment 2x, attempt to obstruct justice, forcible confinement x2 and obstruct justice. The mother alleges that the father assaulted her, physically and sexually.
8. The father was released under stricter conditions which included:
• Being required to live with his surety and be inside his residence at all times except in the company of his surety;
• Remaining within a geographical radius, except to attend court;
• Being required to wear an ankle bracelet at all times; and
• Being prohibited from having any contact with the mother, except pursuant to a family court order.
9. The Children’s Aid Society of Toronto (“CAST”) became involved with the family and investigated. The mother deposes that the CAST had been involved several times because of family violence.
Supervised Parenting Time
10. The parents brought motions before Justice Murray regarding the father’s parenting time. The father sought unsupervised overnight parenting time and the mother sought an order that the father have no parenting time until the Court received evidence from CAST as to their investigation and from the OCL.
11. The mother argued that the children had been traumatized by exposure to the father’s abuse of her. The mother told the Court that she was afraid for her personal safety, if she was required to deliver the children to and pick them up from any supervised parenting time site. Justice Murray described the party’s positions regarding family violence as follows: [The father] flatly denies all the allegations. He admits that he was with [the mother] from June 24-28, 2017, but says that it was with her consent. He says that [the mother] is mentally ill. He says that she periodically fabricates allegations of assault against her, goes to a women’s shelter, and after a period returns to him. [the mother] acknowledges that in 2012 and 2014 she separated from [the father] after assaults; that charges were laid; and that she then reconciled and did not appear at the dates for the criminal trials. She says she did so because of threats from [the father] and pressure from his family.
12. Justice Murray did not grant either parent the relief they sought. Rather, she ordered that the father’s parenting time be supervised and reasoned as follows:
At this early stage of the case, I have incomplete evidence on relevant issues. The evidence as to whether [the father] was violent to [the mother] is inconclusive. If [the mother’s] evidence is accurate, the violence follows a pattern of coercive, controlling violence. For this reason, in my view it is in the children’s best interests to have supervised access to [the father] until further evidence is available reading the CAST investigation of the allegations that the children were traumatized, evidence of violence and confinement, evidence about the father’s relationship with the children prior to separation. Notes from supervised visits will provide some information about the children’s relationship with [the father].
13. Justice Murray sought to have the CAST supervise because she did not accept that the father would follow the rules of a supervised parenting time centre. She found that the father had shown that he was ready to disobey a court order if it conflicts with his plans.
14. Her Honour concluded:
The appropriate temporary order is that the children see [the father] once a week for two hours, supervised by the Children’s Aid Society of Toronto. During these visits, [the father] is not to speak to the children in any language other than English. He is not to question them about [the mother] or their location or current school.
Suspension of Parenting Time
15. The OCL brought a motion, supported by the mother, seeking an order suspending the father’s parenting time on the basis that the children were being traumatized by being forced to attend supervised visits with the father.
16. The OCL relied upon the evidence of the clinical assist, Ms. Greengarten, who was cross-examined on her affidavit. Ms. Greengarten provided details of the supervised parenting time including concerns raised by the CAST and the children’s views that they did not want to attend the supervised visits, that they were afraid of the father, that he pretended when the worker was present and that they cried when they were forced to attend.
17. Ms. Greengarten’s evidence was accepted by the Court. The Court found that the children were traumatized by their previous exposure to family violence, as had been verified by the CAST, and by being forced to attend the supervised visits.
18. Consequently, the father’s parenting time was suspended in order for the children to receive the trauma assessment and treatment recommended by CAST, which was found to be a priority. The services were to be provided by BOOST which required that the children not have contact with the father until the assessment was complete. The father’s parenting was to be reviewed after the assessment and treatment were complete.[1]
19. Since that time, the children have completed the assessment and the treatment at BOOST. Similarly, the father has completed six counselling sessions and two workshops. He attached correspondence to his affidavit which explained;
His counselling goal is to better cope with the grief and frustration with the lack of contact he has with his children and the hardships he experienced after being falsely accused by his former partner, of which he was exonerated in court. Although he has strong coping skills, he acutely feels the loss of contact with his children since he has reported having a close connection with them prior to separation.[2]
CURRENT MOTIONS FOR RESTRAINING ORDERS
Reconciliation January to April 2021
20. The father’s criminal charges were resolved. He plead guilty to three breaches of recognizance and was acquitted of the remaining charges following a jury trial.
21. It is undisputed that in January of 2021, the father visited the mother’s family home in Peru. The mother alleges that the father was there to get information about her. She does not dispute that they spoke on the phone while he was in Peru. The mother deposes that he wanted to reconcile, and that she initially refused. The father’s evidence is that he had no choice but to travel to Peru because he was not getting sufficient information about the children from the mother.
22. It is also undisputed that from that time forward, the parents’ relationship progressed. The father bought groceries for the mother and children, they spoke regularly, and they spent time together. By February of 2021, the father was spending nights at the mother’s home with children present. Similarly, the mother and the children spent nights at the father’s home. The mother deposes that the father spent approximately twenty-five nights at her home and that she and the children spent approximately four nights at his home.
23. It is the mother’s evidence that most nights, the father came over after the children were asleep and left before they woke up in the morning. During that time, according to the mother, the father did not have much to do with the children. They spent relatively little time together and when they did, the mother says that she could see the children did not feel connected to the father. They never initiated hugs and sometimes struggled to get away. Similarly, they were very resistant to the father’s efforts to kiss them. The children spent the majority of their time in their rooms.
24. The father rejects the mother’s characterization of his interaction with the children during the period of reconciliation. He deposes that he spent time alone with the children for a few hours on two or three occasions. They went on excursions that included driving around, going to the park and going to MacDonald’s. The children were happy and not distressed. He believes that they will continue to be happy with him if they are not negatively influenced by the mother. The father deposes that B.O. stated: “Baba don’t tell mommy, I love you more than my bunny”.
25. According to the father, he stopped seeing the children in March after the mother had discussions with CAST and the OCL. He, however, continued to meet the mother at her home in the early mornings while the children were sleeping.
26. The mother alleges, and the father denies, that in March of 2021, the father began pressuring her drop this case. She eventually agreed. The father prepared the Notice of Withdrawal and wrote the text messages and emails he told her to send to her lawyer regarding reconciliation. Realizing the father had not changed, however, the mother says that she ended the relationship in April of 2021.
27. The mother deposes that the father said he knew where she and the children lived and where the children went to school. He found the information on unredacted CAST records. The father denies that he obtained the mother’s address from CAST records and states that she gave it to him. He admits, however, that he obtained information about the children’s school from those records.
Children’s Views and Preferences
28. Ms. Greengarten’s affidavit sets out the children’s views and preferences. She deposes that the children expressed that they were not happy to see the father and that they spent most of the time in their bedroom. They confirmed that the father spent nights at the mother’s home and that they spent nights at the father’s home. More specifically, the children expressed the following:
T.O.:
• He is “rude” and does not appreciate her personality;
• She doesn’t care if he comes or not;
• She did not have any conversation with him when he visited;
• “he wins the trophy for worst father ever”;
• “I don’t want him around”;
• “He doesn’t make me happy”;
• “He makes me devastated”; and
• “He makes me feel guilty”.
B.O.:
• She heard her mother talking to her father on the phone one day. The next night she heard her mother open the door for her father. She was not happy. She was surprised. It was awkward;
• He was teaching her sister math late at night. He got mad and made her cry. “he was so mean that night, I don’t know what was wrong with him”;
• They stayed at his house. The next night mom wanted to leave but he kept forcing her to stay. She could tell her mom was sad, maybe vomiting. They left after the second night. She was not happy there.
• “I don’t want to see him”. “He showed his true personality – he forces a lot, aggressive.”
• When they were little, he was “really aggressive and mean, just mean”.
POSITIONS OF THE PARTIES
The Applicant Mother
29. The mother argues that she has reasonable grounds to fear for her safety and that of the children. Specifically, she is afraid of the father because he assaulted her in the past. He has three convictions for breach of recognizance which involve him contacting her and the children.
30. The mother insists that the contact, for which the father was convicted, was not made with her consent. She explains that she made a mistake by believing the father had changed and attempting to reconcile. The attempt to reconcile was due to the power dynamic and her feelings of dependence and helplessness.
31. In submissions, the mother agreed with the father’s submission than a no-contact order is a reasonable alternative to a restraining order. The Court understood this as an alternative submission if the restraining order is not granted.
The Office of the Children’s Lawyer
32. The OCL takes the position that there are reasonable grounds to fear for the safety of the children. There were repeated and serial breaches of the order suspending the father’s parenting time.
33. The OCL submits that without a restraining order, the children will continue to be traumatized by contact with the father. The children were blindsided by the parents’ attempt to reconcile. They were clear about their views of the father and used language such as “forces, aggressive, he was mean, very mean”. It is clear, according to the OCL, that the present contact reminds the children of the past.
34. The focus should be on the children and they should be protected regardless of whether or not the mother was complicit. A no-contact order, as proposed by the father, will not suffice.
The Respondent Father
35. The father’s position is that there is no basis to fear for the safety of the mother and the children. He denies all allegations of abuse including violence and forcing his way into the mother’s apartment. He submits that the allegations are old and that he can provide evidence, including transcripts and video, to prove his innocence.
36. The father acknowledges three convictions for breaching his recognizance but insists that the contact occurred with the mother’s consent. He notes that he complied with the order suspending his parenting time for two years. He reasons that despite repeatedly breaching the order, there were no allegations of threats or assault during that time.
37. The father argues that during the period of reconciliation, the mother had many opportunities to call police or inform her lawyer if she feared for her safety because he was not constantly with her.
38. With respect to the children, the father submits that if the children do not want to see him, it is because of the mother’s influence. He deposes that he has pictures and videos from the CAST supervised visits where the children were delighted to see him. He states that the CAST did not find any abuse towards the children.
39. The father questions the competence and qualifications of the OCL clinician and lawyer and accuses them of being biased and racially profiling him.
40. He suggests a no contact order as a reasonable alternative to a restraining order.
LAW AND LEGAL PRINCIPLES
Restraining Orders
41. The Court’s authority to issue a restraining order against a spouse or former spouse is found in section 46 of the Family Law Act[3] (“FLA”) which provides, in part:
RESTRAINING ORDER – (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) 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 custody. [Emphasis added]
42. A party who is convicted of violating a restraining order made pursuant to section 46 of the FLA can be liable for:
a. a $5,000 fine and/or three months' imprisonment; or
b. both on a first offence; and
c. a fine of $10,000 and up to two years' imprisonment for each subsequent conviction.
43. A restraining order is necessary where parties are unable to restrain themselves and require the state to tell them how to behave.[4] It is, however, serious and should not be ordered unless a clear case has been made out.[5] In addition to the criminal consequences of breaches, a restraining order will also likely appear when a criminal record search is conducted. As such, a restraining order could have an impact on a person’s employment, ability to travel and immigration status.[6]
44. It is not necessary for the respondent to have committed an act, gesture or words of harassment, to justify a restraining order. Rather, it must be established that the applicant has a reasonable fear of such acts being committed.[7] The applicant’s fear can be subjective, but it must be related to the respondent’s actions or words.[8] A person's subjective fear can extend to both the person's physical safety and psychological safety.[9]
Family Violence
45. Section 18(1) of the Children’s Law Reform Act[10] (“CLRA”) defines family violence in
the following terms:
… any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. [Emphasis added]
46. Section 18(2) provides:
“Family violence”
18(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes, [Emphasis added]
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
47. The negative effects of family violence on children are well known. The perpetrator poses a risk of harm to children even after the separation and even if the perpetrator has not physically assaulted the children.[11]
ANALYSIS
Fear for the Mother’s Safety
48. The Court ordered the father’s parenting to be supervised by the CAST, a nonparty, because of the mother’s fears of having contact with the father at exchanges. The Court found that the father was prepared not to follow court orders when they do not fit his plans.
49. On this motion, the mother fears for her safety and that of the children because of allegations of sexual and physical assault and forcible confinement by the father. Despite the father asserting that he has evidence to demonstrate that the mother fabricated the allegations, no evidence was filed. At trial, the father was acquitted of those charges.
50. The father was convicted, however, of three breaches of recognizance. Because he repeatedly breached his recognizance, the conditions were made increasingly restrictive. He only complied with the no-contact order after he was confined to his home, except in the presence of his surety within a geographic boundary, and was required to wear an ankle bracelet.
Fear for the Children’s Safety
51. I accept the evidence of Ms. Greengarten regarding the children’s views and preferences. The OCL was appointed by Justice Murray. Mr. Mohideen was assigned as counsel to ascertain the children’s views and preferences and take a position on behalf of the children. Ms. Greengarten was assigned to assist Mr. Mohideen so that evidence of the children’s views and preferences could be put before the Court. They interviewed the children numerous times and Ms. Greengarten outlined their views and preferences and the basis of the position taken by Mr. Mohideen on behalf of the children.
52. Ms. Greengarten was crossed examined on her affidavit at the motion to suspend the father’s parenting time in 2019 and this Court accepted her evidence. The father never challenged Mr. Mohideen’s representation of the children or the process by which he arrived at ascertaining views and preferences and taking a position. The views and preferences expressed by the children in 2019 are consistent with those expressed presently.
53. Mr. Mohideen’s role is to take a position of behalf of his child clients. It is not to assess parenting and make recommendations. Ms. Greengarten is only involved so that she can put the evidence of the children’s views and preferences before the Court.
54. The Court takes very seriously allegations of racism. In this case, however, there is no basis upon which to conclude that the OCL racially profiled the father. The position taken on behalf of the children is consistent with position taken by the OCL in 2019, the position taken by the mother, the conclusions of the CAST investigation, the supervised parenting time notes and the findings of the Court.
55. But for the efforts of the OCL, beginning in 2019, the children would continue to be placed at risk of harm. It is the OCL that took steps to bring the matter before the Court in 2019 and now. It is the Court that made the ultimate decisions after receiving evidence and hearing submissions from all parties.
56. I do not accept the submission that the OCL is biased against the father nor that Mr. Mohideen and Ms. Greengarten acted inappropriately in any way.
57. I agree with the OCL submission that the father has no insight into his conduct. His counselling focused only on his grief. The children were blindsided by the reconciliation without any therapeutic support for the reunification. He did not seek guidance from the professional he was seeing or the professionals at BOOST that assessed and treated the children about the appropriate steps for a therapeutic reunification.
58. In justifying his breach of the order suspending his parenting time, the father seems to believe that the situation is ameliorated by the fact that he complied for two years and there were no allegations of threats or abuse during that time.
59. The children did, however, experience emotional distress as a result of being forced to interact with the father during the period of the parents’ reconciliation. They expressed being “devastated”, that the father “forces a lot” and is “aggressive and mean”. Moreover, B.O. witnessed the father coercing the mother to stay at his home an additional night.
CONCLUSION
60. I find that the father’s repeated and serial breaches of the criminal Court orders to not have contact with the mother and this Court’s order suspending his parenting time with the children establishes a pattern of coercive and controlling behaviour that caused the mother and the children to fear for their safety. The father’s conduct in this regard constitutes family violence.
61. Based on the forgoing, I find there are reasonable grounds to fear for the safety of the mother and the children.
ORDER:
1. The motions are granted; and
2. The details of the restraining order will be addressed in a separate endorsement.
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Released: January 18, 2022
Signed: Justice Maria N. Sirivar
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