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Posts from the ‘Ontario Family Violence’ Category

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (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 RussellAlexander.com

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Here’s a good question: Is a mother entitled to unilaterally deprive the father of his access rights to their child, based on an incident – that she did not witness – in which the father punched the child’s grandfather in the face? Does it matter that she heard the news from the father’s recently-estranged ex-girlfriend?

Before you answer, here are the fuller facts:

The mother and father had a child together, and split up a few years later. The father, who had been dating and living with someone new for about a year, enjoyed unsupervised access to the now 6-year old boy, pursuant to a court order.

Things were going well with the arrangement until December of 2015. That’s when the father, the child, and his new girlfriend attended a Christmas family function hosted by father’s parents (i.e. the child’s grandparents).

The court, describing the recount of the incident given by the girlfriend in her court-filed affidavit, picks up the story:

She states that “the first time I witnessed [the father’s] rage was at his parent’s home”, about a week after Christmas. She states that they were about to sit down for breakfast when the [the father] became enraged because his mother did not prepare a vegan breakfast for him. She alleges he called his mother a “dustbag” and said “I hope you die”. He then went outside to have a cigarette. His brother … went out to calm him down and they started yelling at each other. [The girlfriend] went outside and saw the [father] swinging his fists at [his brother]. His father came out and intervened, and the [father] punched his father in the face.

Fast-forward two months. The father had recently broken up with his girlfriend (now ex-girlfriend), who took it upon herself to text the mother, complaining about the father’s behavior. In particular, the ex-girlfriend warned the mother about the incident at the Christmas family gathering that the mother did not attend.

The ex-girlfriend’s version of events was confirmed in an affidavit by the father’s brother; however the grandfather himself denied that the incident took place or that he was punched in the face.

Shortly after receiving the ex-girlfriend’s text the mother, apparently fearing for the child’s safety, decided of her own initiative that the father should no longer have access to the child, and refused to cooperate with his attempts. (She tried to get a court order without giving notice to the father, but it was rejected). In the following weeks, the father sent her three letters, putting her on notice that she was in breach of the court order. She continued to foil his access, until the father applied to the court to have the mother held in contempt.

The court considered all aspects of this rather unique scenario. By her own admission, the mother had disobeyed the court order, and persisted even after the father complained by letter. Her was motive clearly stemmed from concern over the child’s safety. But the key question was whether her disobedience was legally justified, due to the presence of serious risk of harm to the child.

After reviewing the evidence, the competing versions of the incident, and legal test for contempt, the court wrote:

In my view, the Christmas incident reported by [ex-girlfriend] falls short of demonstrating a serious risk of harm to the child. The child was not directly involved in the incident, and was apparently unaffected by it. It is noteworthy that, according to [the ex-girlfriend], this was “the first time” she was exposed to the [the father’s] “rage” even though they had been a couple since the preceding May. This suggests that this incident was an isolated one, and not part of a continuing course of conduct.

There is nothing about the December incident that gave rise to a situation of serious risk to the child that justified the unilateral action of the [the mother] in choosing to defy the access order. It is significant that the incident had occurred two months before she even became aware of it, and throughout that period she was of the view that access was going well.

In short, the mother’s decision was a gross overreaction to the information she received from the ex-girlfriend. The court found her in contempt.

For the full text of the decision, see:

Houben v Maxwell, 2016 ONSC 2846 (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 RussellAlexander.com

Can Text Messages Amount to “Violence”? Maybe.

text-message

Can Text Messages Amount to “Violence”? Maybe.

In a recent Blog I discussed the concept of “violence” in the Ontario Family Law context, and in particular how its presence in the relationship could affect the right of the victimized spouse to be given exclusive possession of the matrimonial home upon separation, by way of a court order.

Under the governing provision, which is found in the Family Law Act, the violence can be either physical or emotional; the court is left with the task of determining when the appropriate level of either type of violence has been met.

Needless to say, this can be a challenging task. Over the years, courts have offered thoughts on the nature of the legal threshold.

For example, in a case called Kutlesa v. Kutlesa, the court reflected on the essential elements required to meet the threshold of “violence” for the purposes of the Family Law Act provision, writing:

The “violence” referred to in section 24(3)(f) [of the Family Law Act] must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.
Similarly, in a case called Hill v. Hill, the court concluded that that violence can be achieved “by words not deeds” and added that violence is “not restricted to violence which can be achieved solely by physical abuse.”

But these loosened definitions do not eliminate the requirement to meet the threshold set by law. In a recent case the court considered whether it can be met through the use of text messages, but emphasized that the overall context of the spouses’ relationship had to be considered. The court wrote:

I agree with the [wife’s] submission that domestic violence can be demonstrated on social media and by use of electronic communications. I also agree that the [husband’s] electronic communications to the [wife] were at times vulgar, offensive and threatening. The worst of the text messages came in April 2014, after the first time the [the wife] left the matrimonial home without notice … and after she had consulted with a lawyer. This was the same month that the parties had a terrible fight leaving the [husband] and [the child] with scratches. The [husband’s] electronic communications cannot be assessed in isolation. They are part of a broader picture of two parents bitterly fighting to control the process of separation and the custody of their daughter. This is not to excuse the [husband’s] communications. His response to the [wife] and her supporters was not acceptable. In this context, however, in my view, it would be a mistake to characterize such communications as domestic violence or abuse.

The bottom line is that “violence” can take many forms: emotional, verbal, and even by text message sometimes.

For the full text of the decisions, see:

Hill v. Hill, 1987 CarswellOnt 238, [1987] W.D.F.L. 2243, [1987] O.J. No. 2297, 10 R.F.L. (3d) 225, 6 A.C.W.S. (3d) 355

Kutlesa v. Kutlesa, 2008 CanLII 13187 (ON SC)

J.K. v. W.R.N, 2016 ONSC 3179 (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 RussellAlexander.com

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

harassment

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

Last week I discussed some of the principles that are relevant to an Ontario court’s ability to consider “violence” against one spouse by the other as a factor in whether to order that the victimized spouse be granted exclusive possession of the matrimonial home (read the full post here).

In British Columbia, the legislators have gone one step further: the counterpart to our province’s Family Law Act expressly expands the definition of “family violence” to specifically include:

• Physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

• sexual abuse of a family member,

• attempts to physically or sexually abuse a family member,

• psychological or emotional abuse of a family member, including;

o intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

o unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

o stalking or following of the family member, and

o intentional damage to property, and

• in the case of a child, direct or indirect exposure to family violence.

(And it should be noted that B.C. courts are allowed to consider family violence not merely in connection with post-separation possession of the family home as in Ontario, but also in relation to numerous other aspects of the parents’ relation and separation, including assessing the best interests of the child).

In a recent B.C. decision, the court was asked to consider the limits of this expanded definition. There, the wife claimed that not only had the husband engaged in this kind of impugned conduct, but that the husband’s brother had been aggressive and abusive to her as well.

For example, the brother – who was a physically large man – attended at the drop-offs and pick-ups of the couple’s daughter at the mother’s apartment. He was in the room when the mother had FaceTime visits over the internet with the child, and once filmed the child while having dental treatment. On one noteworthy occasion, he held up a hand-lettered sign to the mother, in the presence of the child, that had the word “LIAR” printed on it.

The husband had stood by and simply acquiesced in the brother’s conduct on these occasions. The wife claimed that she should be sheltered from such conduct, and that it met the definition of “family violence” for the purposes of the B.C. legislation.

Although the court refrained from ruling specifically on the mother’s argument on this point, it did reproach both the husband and the brother’s conduct in the ruling, calling the latter “infantile, and exceedingly inappropriate”. In the context of examining the existing child care and custody routine, and in the course of revising those arrangements, the court made an order specifically directing the husband to restrain his brother from such further behaviour, for example by ensuring that the brother no longer attend at drop-offs/pick-ups and FaceTime visits and no longer do any filming in relation to the child and mother.

Do you think that the B.C. definition of “family violence” should be adopted in Ontario for Family Law purposes? What are your thoughts?

For the full text of the decision, see:

Z.S.R. v. R.S., 2016 BCPC 200 (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 RussellAlexander.com.

Does Callousness Amount to “Violence”?

callous-husband

Does Callousness Amount to “Violence”?

Many of you might not be aware that in Ontario, the Family Law Act (the FLA) contains provisions that allow a court to consider whether one spouse has committed violence against another spouse or the children, specifically in the context of deciding whether to allow the victimized spouse to have exclusive possession of the matrimonial home.

For these purposes, “violence” is generally easy to identify from a common-sense perspective, and includes physical or sexual force, threats, stalking, harassing, and emotional abuse. But Ontario courts have sometimes been called upon to define the precise limits of that concept.

For example, in a case called Aston v Matwee, the wife made a bid for an order ousting the husband and granting her exclusive possession of the family home. In this context she argued that being a vulnerable spouse, the husband’s callous conduct towards her qualified as “violence” within the meaning of the test set out in the FLA.

Specifically, she claimed that the divorce was causing her stress, and that the husband’s conduct was impinging on her already-fragile health which caused her stress and anxiety that amounted to an emotional condition.

In entertaining this argument, the court took a close look at how “violence” had been defined by courts in the past. The cases showed that in connection with claims for exclusive possession, the character of the violence to be established must amount to a “psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical.” When perpetrated by one spouse on the other, this would typically involve written and spoken conduct that produces an anxiety state, putting the other spouse in fear and impinging on his or her mental and physical health to the point where “violence has been done to [his or] her emotional equilibrium as if [he or] she had been struck by a physical blow.”

Accordingly, the court in Aston v Matwee conceded that “violence” under the FLA is not restricted to physical conduct or abuse (i.e. it can be achieved words and deeds in some cases), but held that the wife’s evidence fell short of showing that the required statutory threshold had been met in her case. The court also pointed out that the FLA did not allow the wife’s emotional condition to be taken into account as a factor.
The court observed that it in light of the potential outcome if the wife prevailed in her application – which would be to dislodge the husband’s statutory right to possess the matrimonial home – the court had to be certain that the necessary legal burden of proof was met before it could make the order. The wife had not succeeded in persuading the court in this instance.

For the full text of the decision, see:

Aston Matwee, 2015 ONSC 8087 (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 RussellAlexander.com.

Ontario Divorce without Courts: Introduction to Collaborative Practice – video

Wednesday’s Video Clip: Ontario Divorce without Courts: Introduction to Collaborative Practice

Collaborative Divorce, also known as “Divorce without Courts” or Collaborative Practice, is a new way for lawyers to help resolve your marital dispute respectfully, and without Courts. In Ontario, Lawyers can help negotiate divorce settlements, while maintaining open communication and creating a shared solution between spouses.

In this video we review the merits of collaborative practice in divorce.

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.  To learn more about: “Ontario Divorce without Courts”, please visit our website at russellalexander.com

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

puzzeled

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

In a recent Ontario family case called Hutton v. Hutton, I read a few passages from the judge’s reasons that gave me pause.

There, the wife was representing herself in what was otherwise a routine proceeding for divorce and the equalization of net family property. The husband took the relatively-unusual step of bringing a motion to strike out about 10 paragraphs of the wife’s pleading, claiming that they were irrelevant, prejudicial, scandalous, embarrassing, and will delay the fair trial.

The motion judge said:

The law in family law cases concerning pleadings is the same as in non-family civil matters — that is to say – relevance. However, in view of the personal emotional issues that generally drive the legal issues, the courts have taken a more relaxed approach and tolerate an expanded view. The dramatic increase in non-legally trained self-represented litigants has hastened this relaxed approach to the point that lawyers are frequently persuaded by their clients to adopt a stance that the opposite party must be portrayed as an evil person in order to guarantee success. This inevitably requires that every real or imagined slight or disagreement is seen to take on major significance in support of the description of the opposite party. As might be expected, the opposite party feels obliged to retaliate. The real issues become lost in the accusations, denials, counter-accusations, and counter denials. Each party’s perceived baggage and the rights and wrongs of it all become the cross the court must bear – running the risk of obscuring the real issues. In other words, the battle becomes the central focus – not the outcome.

Whether to the average member of the public this comes off as insightful or else disheartening, it struck me as being unusually candid for a judge. The judge also turned his scrutiny to the members of the legal profession: In the context of pointing out that a motion to strike pleadings is relatively uncommon in family law matters, the motions judge continued:

On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society.

Ultimately, the judge ruled that 6 of the 10 impugned paragraphs in the wife’s pleadings should indeed be struck, but in doing so he took the unusual step of peeling away a little bit of the veil of idealism over the legal system.

Is the judge right? What are your thoughts?

For the full text of the decision, see:

Hutton v. Hutton, [2015] O.J. No. 5606, 2015 ONSC 6683

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

Will Ruling on Twitter-Based Harassment Affect Family Law?

twitter harrassment

Will Ruling on Twitter-Based Harassment Affect Family Law?

In a case that made the headlines last week, Gregory Alan Elliott was found by an Ontario Court to be not guilty of criminally harassing two women, Stephanie Guthrie and Heather Reilly, by way of Twitter. They had accused him of being “creepy” and misogynistic in what they considered to be an excessive number of Twitter references to them, even after they blocked him and asked him to stop. The women, who happened to be involved in a group called Women in Toronto Politics, felt that the sheer “volume” and obsessive nature of Elliott’s tweets left them feeling harassed to such an extent that they complained to police, resulting in Elliott’s arrest and criminal proceedings. As the court described it:

Mr. Elliott sent some tweets directly to both women, but the prosecution does not rely on the direct tweets alone. Ms. Guthrie’s harassment and fear came from her perception that Mr. Elliott sent an incessant and obsessive amount of tweets, including those not sent directly to her but of which she would have been advised. Ms. Reilly became fearful when she inferred from one of his tweets that Mr. Elliott might be in the same physical place as her. The alleged communication by tweeting also includes tweets by Mr. Elliott about subjects, topics, ideas and events that Ms. Guthrie and Ms. Reilly were interested in and therefore might or probably would read.

The back-story and coverage of the three-year long criminal case and subsequent acquittal in R. v. Eiliott – which is apparently the first Canadian one of its kind involving Twitter as the medium for the alleged harassment – is easily found on the internet. But the interesting question is whether this criminal law decision will have any reverberation in the sphere of family law disputes.

In the past, I have written about the use of Facebook (and theoretically, other social media) in divorce and related family proceedings. In that context, Facebook’s role has come under scrutiny in many different contexts:

• the admissibility of evidence secretly obtained from a spouse’s Facebook;

• whether parents should be barred from posting details of their family disputes online;

• whether non-public Facebook information should be kept private in terms of disclosure for family proceedings; and

• and the question of how children might be adversely affected by posted information, as in the case of the separated father who posted photos of his children on his Facebook page.[]

Collectively, the outcomes in these cases suggest that courts remain conservative and resoundingly sensitive when striking a balance between broader freedom of expression rights on the one hand, and the protection of spouses’ and children’s interests on the other, even in the “wild west” milieu of social media. Indeed, family courts have certainly shown a willingness to address – and if need be, curtail — any intrusive and negative effects of social media, so that the resolution of family disputes does not impair the rights and interests of its participants, especially the children.

It will be interesting to see how this latest ruling in R. v. Elliott will be adapted (if at all) to the family law realm, given that it arguably upholds a relatively-unfettered ability to use of Twitter (within the customary proscribed limits imposed by Canadian constitutional, criminal and human rights law, of course).

For the full text of the decision, see:

R. v. Elliott, 2016 ONCJ 35 (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

Need a Restraining Order? Here’s What You Need to Know

panic

Need a Restraining Order? Here’s What You Need to Know

Not to drift too far from the spirit of the holiday season, I wanted to revisit the law on Restraining Orders, which was featured in a recent blog on a case called McCall v. Res. There, the court considered whether to grant a Restraining Order and in particular assessed the test under section 46 of the Family Law Act of whether 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.”

For those who are considering an application for a Restraining Order, it’s important to note that this section 46 threshold test has certain embedded components. In an earlier case called Fuda v. Fuda, the court established that in order to obtain a Restraining Order:

• The applicant’s fear must be reasonable.

• It can be of a personal or subjective nature, as long as it is legitimate.

• The fear may relate to either psychological or physical safety.

• The fear need not arise from the other person actually committing an act, gesture or words of harassment; it is enough that the person applying has a legitimate fear of them being committed.

• The person applying must be able to associate his or her fears with the other person’s actions or words.

Incidentally, the court pointed out that in order to be eligible to obtain a Restraining Order the person applying does not have to have an overwhelming fear that “could be understood by almost everyone”; on the other hand, a Restraining Order cannot be granted to forestall every perceived fear of insult or possible harm (unless there are compelling facts in justification).
Finally, as for the terms of the Restraining Order granted against a person, the court has wide discretion to make an order that it “considers appropriate”. This can specifically include an Order that the person:

• Not contact or communication with the person applying or any child in his or her company; or

• Not come within a specified distance of one or more locations.

One final point (but a very important one): A Restraining Order can only be granted against a specified class of people, namely a spouse or former spouse of the person applying, or else a person who is currently living with, or formerly lived with him or her – and there is no minimum time limit for the living-together period.

For the full text of the decisions, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

Fuda v. Fuda 2011 ONSC 154 (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

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

screaming-

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