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Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

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Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

Recently, we wrote a Blog about an Ontario case  in which the court was asked to grant a Restraining Order to prevent a man from posting scandalous details about his Ex’s “private intimate information” on the Internet.

I also wrote recently about a case called McCall v. Res  which involved a separated parents in high-conflict. There, the same court considered the mother’s request for a Restraining Order, this time in response to many incidents involving the father (which he did not deny). In the mother’s own words:

• “[he] shoved me to the floor while swearing angrily at me”.

• “knowing I was pregnant”, he slapped [me] in the face “extremely hard, threw a banana at the wall and stomped around the house in an infuriated state”.

• “grabbed the chair I was sitting in, when he felt I was taking too long at the computer, and forcefully wheeled it to the front door of the home, and threatened to eject me out the front door and into the street, while he was cursing at me and telling me to get out of his home, which was also my home at the time”.

• “on one occasion he left the house, commenting that I would end up giving birth to a ‘cripple’, due specifically to my eating habits”.

The court said this was “but a few of the many examples of harassing behaviour” that the father had inflicted on the mother in the past, and added that there were several other incidents that the court could certainly have drawn from.

Still, the case was a little unusual because it focused on whether the mother’s fear of the father was reasonable. In considering her request, the court remained mindful that under s. 46 of the Ontario Family Law Act, courts only had the authority to grant a Restraining Order if:

1) the person applying is a spouse, former spouse, or a person currently for formerly living with the person against whom the Order is sought; and

2) the person applying has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”

On this second point, the McCall case had an interesting twist: the father claimed the mother’s feelings of so-called torment were not truly because of his conduct, but rather were caused (or magnified) by the fact that she had suffered a brain injury in a motor vehicle accident. After being comatose for a period, she was able to live independently and was now leading an “almost typically normal life”, but had problems with cognition and (as the court put it) was “somewhat vulnerable to the influences of those she is close to.”

But in the end, the court was not swayed. Even taking into the mother’s injury-related challenges, and even taking a narrow view of the many prior incidents instigated by the father, there was more than sufficient reason for the mother to have a reasonable, legitimate, and subjective fear of being harassed and manipulated by him. The court granted the Restraining Order against the husband, on specified terms.

For the full text of the decision, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com