) ) Derek Clifford Armstrong Applicant – v. –, 2023 ONSC 5451

CITATION : Armstrong v Coupland, 2023 ONSC 5451 COURT FILE NO.: 404-21 DATE: 2023-09-28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Derek Clifford Armstrong Applicant – and – Amanda Elizabeth Coupland Respondent ) ) ) ) ) ) ) ) ) ) ) Applicant, Self-Represented J. Swan, Counsel, for the Respondent ) ) HEARD: February 10, 13, 14, 15, 16, 17, 2022 and March 6, 7 and 9, 2022 JUDGMENT The honourable madam justice c. lafrenière Matter before the Court [ 1 ] This is my decision regarding the trial in this matter.

I will identify the Applicant as the father and the Respondent as the mother in this decision. [ 2 ] The father’s application is dated March 29, 2021. The mother’s answer is dated May 4, 2021. Background and undisputed facts [ 3 ] I find the undisputed and background facts are as follows: a. The father’s date of birth is August 16, 1977; b. The mother’s date of birth is May 6, 1987; c. The parties never married; d. There is one child of the relationship: Eliza Anne Marie Coupland, born May 8, 2019; e.

The mother has an older child, Cora Lynn Faith Little, born December 29, 2010, who is not a part of this proceeding; f. The father has older children: Jack Armstrong, born in 2003 and Carter Armstrong, born in 2006. Jack is autistic. Jack and Carter live in Kirkland Lake with their mother, Melodie Trish McNaueal (“Trish”); g. The father separated from Trish on March 9, 2016; h. Jack and Carter have lived with their mother since their parents separated;

i. The father also has a stepdaughter, Jessica Young, who is almost 30 years of age; j. The mother says the parties were in an “on-again/off-again” relationship from August 16, 2016 until May 5, 2019; k. the father says their relationship was not “on-again/off-again” during the period when they were in a long-distance relationship; l. The father relocated from Kirkland Lake to Hamilton and moved into the mother’s home in August 2018; m. The parties lived together from August 2018 until a few days before Eliza’s birth on May 8, 2019; n.

The parties reconciled and were again in a relationship from February 21, 2020 until September 22, 2020; o. The father maintained a separate residence from May 19, 2019 until September 22, 2020; p. The father spent time at the mother’s home when they were trying to reconcile the relationship in the period from February 21, 2020 until September 22, 2020 when the parties ended their relationship on a final basis; q.

Eliza has resided primarily with the mother from birth and shared parenting time with the father on a supervised basis except for a few brief occasions when the parties were attempting to reconcile and a two-month period from mid-September until mid-December in 2021 pursuant to Justice MacLeod’s Temporary Order dated September 10, 2021; r. At the time of trial, the father was having supervised parenting time at the Access Centre at the YWCA in Hamilton; s. The father has been employed at Duke Electric for more than 10 years; t. The mother has been employed at Canada Post since 2017; u.

The father was charged with driving under the influence (“DUI”) in February 2019 and in 2012 or 2013. The first charge resulted in a nine-month suspension of his driver’s licence and the second a suspension of about eighteen months; v. The father is paying child support for Carter in the monthly amount of $400.00 pursuant to a Final Order dated April 2022 based on his 2021 income of $52,807.00. He is not paying child support for Jack any longer; and, w. The father has an outstanding criminal charge of harassment against Trish in Kirkland Lake.

Temporary Orders [ 4 ] Justice Donahue heard an urgent motion brought by the father April 8, 2021 Both parties were self-represented at that point. Justice Donahue made an interim interim without prejudice order providing that the father would have weekly supervised access through Brayden Supervision Services in the community. Justice Donahue ordered in person visits were to be three hours and if in person was not available due to the pandemic, the father was to have weekly virtual visits of 15 minutes in length.

She also ordered that Eliza’s primary residence would be with the mother. [ 5 ] The father brought a motion for parenting time which was triaged by Justice Pazaratz on April 27, 2021. Justice Pazaratz’ endorsement is set out below: 1. This matter came to me today for Triage pursuant to the Notices to the Profession issued by the Chief Justice on April 20, 2021, and by Regional Senior Justice Sweeny on April 22, 2021 (in relation to Central South Region). 2. The Applicant father submitted a Motion/Conference Triage Form, a copy of which is attached. 3. Based on the

summary provided in that triage form I have determined that this matter does not meet the requirement for “urgency”, which governs which matters will be allowed to proceed during the COVID-related suspension of court operations. 4. I am mindful that this case involves important parenting issues, and those are always given priority in our family court system. 5. However, it would appear that after a lengthy gap, parenting time in relation to this young child was recently restored for the father pursuant to Justice Donohue’s temporary temporary without prejudice order of April 8, 2021. 6.

While it is likely that parenting time will continue to evolve, the court system will not be able to address the next transition until the suspension of court operations has been lifted. 7. I recognize that there has been considerable conflict between the parents, and the delay in returning to the court will likely be frustrating for both the mother and the father. I would urge both parents to show flexibility and cooperation during these difficult times, for the sake of Eliza. 8. Our court system went through a similar suspension of operations last year.

Parents who cooperated with one another during the suspension invariably made a good impression with judges once court operations resumed. Parents who were less cooperative during the shutdown generally found that once court resumed their credibility had been eroded.

[ 6 ] The father brought a motion seeking a finding of contempt and a motion for specified unsupervised parenting time (and in the alternative specified supervised parenting time). The motion for contempt was withdrawn on the day of the hearing, July 22, 2021. Justice Sweeny found the parenting time motion was not sufficiently urgent to proceed before a case conference (scheduled for August 24, 2021 at 10:00 am) and ordered the father to pay $1,500.00 in costs at the end of the litigation. [ 7 ] The case conference was held by Justice Reid on August 24, 2021.

The parties were able to resolve several issues on consent and Justice Reid made an order on consent, as follows: a. Mr. Armstrong was declared to be Eliza’s father. b. On a temporary without prejudice basis: i. the mother would have decision-making authority for Eliza and primary residence of her; ii. The mother to cooperate to update Eliza’s official records to reflect the order as to parentage; iii. The parties to communicate through Appclose application; and, iv.

Father to pay child support of $315.00 monthly based on gross annual income of $36,078.00. [ 8 ] The parties did not reach an agreement regarding the father’s parenting time. [ 9 ] The father brought a motion for unsupervised parenting time returnable on September 10, 2021.

Justice MacLeod granted an Order, on consent, providing that the father would have unsupervised parenting time Tuesdays and Thursdays from 4:00 pm to 7:00 pm and Sundays from 10:00 am to 2:00 pm. [ 10 ] The order further provides all communication is through the AppClose application and is to be child focused and related to parenting Eliza only and that neither party is to speak negatively about the other in Eliza’s presence. [ 11 ] Further, the father is prohibited from consuming alcohol or any illicit substances 12 hours before a visit and during the visit. [ 12 ] In Justice MacLeod’s endorsement granting the order, he specifically endorsed that the parenting time

schedule was to remain in place until the settlement conference scheduled for late December 2021 unless there were issues requiring the parenting time to be decreased. [ 13 ] On December 10, 2021 Justice Chappel released a 28-page judgment setting out her reasons for dismissing the father’s motion and allowing the mother’s motion. The father’s motion was to increase his parenting time to every Monday and Wednesday from 4:00 pm to 7:00 pm and every weekend from Friday at 4:00 pm to Sunday at 4:00 pm.

The father also sought parenting time during the Christmas holidays and the right to have Eliza in his care, if the mother was unable to care for the child during her parenting time. [ 14 ] The mother sought an order varying Justice MacLeod’s order to provide the father’s parenting time is supervised by Thrive Counselling. [ 15 ] Justice Chappel varied Justice MacLeod’s order to provide: a. The father’s parenting time would be supervised by the Children’s Aid Society (“CAS”) if it consents to supervise and/or Thrive Counselling. b.

The parenting time was to be as accommodated by the CAS and/or Thrive but no more than twice a week for two hours per visit. c. The father was prohibited from consuming alcohol or any illicit drugs during his parenting time and for a least 24 hours before the start of his parenting time. d. All communications between the parties shall be through counsel or a third party agreed upon in writing. The father’s communications were subject to the following terms and conditions: i. His comments shall be strictly limited to issues pertaining to the child; ii. His messages shall be brief, informative and courteous; iii.

He shall refrain absolutely from making derogatory comments about counsel, any agreed upon third party and the mother and shall refrain from setting out personal opinions regarding their character. [ 16 ] Justice Chappel provided that, if the father breached the communication provision, the mother could apply for costs in connection with each breach pursuant to Rule 1(8)(

a) of the Family Law Rules . [ 17 ] Justice Chappel found there had been material changes in circumstances relevant to Eliza since September 10, 2021 that warranted variation of Justice MacLeod’s order. Justice Chappel noted at the outset of her reasons that the CAS was in the midst of a child protection investigation at that time. [ 18 ] I set out the paragraphs from Justice Chappel’s reasons for her decision because she carefully outlined the evidence before the

court and set out why the father’s behaviour was not acceptable. Her reasons should have guided the father to moderate his behaviour. Unfortunately, they did not. [ 19 ] Justice Chappel found at paragraphs [34] through [44] of her judgment: [34] To begin with, I note that when MacLeod J. made his temporary order dated September 10, 2021, he clearly had concerns about the Applicant’s history of substance abuse and “combative” behaviour towards the Respondent.

However, he felt based on the evidence before him that these concerns were not of such a severity as to justify supervision of the Applicant’s parenting time with Eliza. Nonetheless, because of those concerns, MacLeod J. stated that the parenting terms that he was ordering were to remain in place until at least the settlement conference in December 2021, barring any negative incidents that would warrant a decrease in the Applicant’s time with Eliza.

Despite this clear direction, the Applicant has since September 10, 2021 demonstrated that he had no intention of abiding by the parenting time terms set out in the order made on that date, and has embarked upon a persistent, systematic campaign with the Respondent and her counsel to change those terms. The Applicant insists that there was an understanding by the end of the court appearance on September 10, 2021 that the parties would work towards an increase in his unsupervised time with Eliza leading up to the settlement conference. There is no evidence whatsoever in support of any such understanding.

The endorsement of September 10, 2021 clearly reflects that there was no such intention, and that MacLeod J. would not have supported an increase in unsupervised parenting time without further judicial input on the issue after considering how the Applicant’s parenting time had gone. The Respondent strenuously argued in court on September 10, 2021 that the Applicant’s time with Eliza should be limited to professionally supervised parenting time.

For the Applicant to suggest that the Respondent was supportive of a significant increase in his parenting time by the end of that court appearance is simply not plausible.

The Applicant’s alleged misapprehension of the outcome of the September 10, 2021 court appearance raises serious concerns regarding either his credibility or his ability to process information clearly and to conduct himself appropriately in response to court orders. [35] The Applicant’s behaviour in relation to his parenting time with Eliza since September 10, 2021 has wreaked havoc on the Respondent’s life and seriously impacted her ability to focus on caring for Eliza and her other daughter Cora. It has also placed an incredible strain on the Respondent’s counsel, Ms.

Swan, in her efforts to represent the Respondent in this matter. Since shortly after September 10, 2021, the Applicant has bombarded the Respondent and Ms. Swan with regular requests, at least 2 to 3 times per week, to change the times for his visits, increase his parenting time, allow for overnight time and change the location of parenting time exchanges. He has typically made these requests on very short notice, has demanded a response by a specified time, and has threatened to simply take or keep Eliza in accordance with his requests in the absence of a response within his unilaterally set response time.

Many of the requests have been made on a Friday evening before his Sunday visits. As part of this campaign to change the parenting terms of the existing order, he has relentlessly pressured the Respondent at the time of parenting exchanges to concede to his demands for increased parenting time and other changes to the existing order. This behaviour became progressively more frequent and assertive, to the point that the Applicant simply began to dictate changes to the September 10, 2021 order without regard for whether the Respondent consented or not.

These persistent requests have caused the Respondent a great deal of distress and have disrupted her daily functioning and parenting. She became extremely anxious at parenting exchanges because of her expectation that the Respondent would pressure her in front of Eliza. In addition, she has had to frantically seek out her counsel, often over the weekend, to obtain advice and attempt to respond by the deadlines set by the Applicant for a reply to his demands. To her credit, she and Ms. Swan were generally able to respond on time, but at a huge personal toll as well as a professional one for Ms. Swan.

On each occasion, Ms. Swan has asked the Applicant to confirm that he will abide by the terms of the September 10, 2021 order. Until November 19, 2021, the Applicant reluctantly agreed to abide by the order. However, on Friday November 19, 2021, he sent several emails to Ms. Swan, stating that on a go-forward basis, commencing November 21, 2021, he would be keeping Eliza every week from Sunday at 10:00 a.m. until Thursday at 7:00 p.m., regardless of the Respondent’s consent.

He also sent a text message to the Respondent’s best friend, Rachel Chabot, on November 21, 2021 before his scheduled visit began, stating that he would be keeping Eliza in his care every week from Sunday morning until Thursday evening. Ms. Swan advised the Applicant that the Respondent did not agree with this plan, and asked him once again to confirm that he would abide by the terms of the September 10, 2021 order and return Eliza to the Respondent’s care after his visit on November 21, 2021, at 2:00 p.m.

He did not commit to doing so. [36] I summarize the evidence in support of the above-noted concerns in greater detail below. However, I note that in addition to those concerns, the Applicant has since September 10, 2021 demonstrated extremely poor impulse control and a general sense of dysregulation in his communications with Ms. Swan and the Respondent about issues pertaining to Page: 17 Eliza. The communications demonstrate a pattern of him being conciliatory at first when making requests, but then quickly becoming disrespectful and belligerent when things do not go as he wishes.

In these communications, he has been demanding, has launched insults against Ms. Swan and the Respondent, has accused the Respondent of alienating him from Eliza and Ms. Swan of being an accessory to this alleged alienation, and has threatened to report Ms. Swan to the Law Society of Ontario for alleged professional misconduct. At times, these communications have occurred late at night and he has sent several messages in succession. Many of the communications have been rambling in nature and very difficult to comprehend.

The Applicant’s Reply affidavit filed on this motion was similarly prolix in nature and difficult to follow. In addition, the Applicant’s notes about his visits with Eliza reflect that he had no intention of ever abiding by the parenting terms of the September 10, 2021 order, and that he has a very negative view of the Respondent as a person and a parent. [37] The details respecting the concerns described above are as follows: 1. On September 16, 2021, only 6 days after the existing order was made, the Applicant sent Ms.

Swan a convoluted, 8 page email requesting a significant expansion of his parenting time leading up to the settlement conference in December 2021, for parenting exchanges to occur at the parties’ homes rather than the MacDonald’s, and for makeup time for missed visits. He also indicated that he would be recording all parenting time exchanges using a dashcam, and he set out a complex proposal for how the parties should discuss issues respecting Eliza. The Applicant also set out specific deadlines for when he expected to receive responses to each aspect of his proposal.

He commented that he felt this significant expansion of his parenting time aligned with the order made on September 10, 2021, and that he would therefore be bringing a motion to seek an order in accordance with his proposed

schedule if the Respondent did not commit to abide by it by October 31, 2021.

2. A week later, on September 23, 2021, the Applicant commented in a note that he made about his visit that day that the Respondent was reluctant to speak to him at the parenting exchange when he wanted to talk about his visit and his parenting time. He also indicated that Ms. Swan had sent him a letter regarding his proposal, and that the Respondent was “not interested in helping to reintegrate me into Eliza’s life.” He stated that he would try again the next day to garner the Respondent’s cooperation through her lawyer, “but I think I’m going to need to file another Motion.” 3.

In his note respecting the visit on September 28, 2021, the Applicant commented that Eliza has made comments that suggest that she is being “programmed by the Couplands,” that the child Cora is likely involved in this programming, and that he attempts to engage Eliza in discussion about this during visits to see the full extent of this alleged behaviour.

He notes that he is a pillar of stability for Eliza “amidst the craziness that she’s exposed to at her mom’s.” In addition, he comments that another motion will be required to get this “craziness” to stop, but that he would try one last time to get the Respondent to be more reasonable. 4. His note regarding the visit on September 30, 2021 indicates that he pressed the Respondent for additional parenting time for Thanksgiving weekend during the parenting exchange, despite the fact that Ms. Swan had already addressed his request for additional time.

This clearly caused the Respondent stress, as the note indicates that she swore at him in response to the request and told him to just get Eliza out of the car. The Applicant added at the end of his note that Eliza wants more time with him, and “I’m going to get it for her. Simple as that.” 5. The Applicant indicated in his note respecting the visit on October 3, 2021 that he again asked the Respondent about more time for Thanksgiving at the parenting time exchange that day. 6. On October 5, 2021, the Applicant sent Ms.

Swan and the Respondent an email complaining that she and the Respondent had not responded to his proposal for expanded parenting time, other than to refuse to respect Eliza’s best interests and to ignore the directions given by MacLeod J. at the hearing of the motion on September 10, 2021 regarding more parenting time for him.

He noted that he had attempted to talk to the Respondent at parenting exchanges about Thanksgiving weekend, but described her as “Oppositional and Defiant, as though she’s been inflicted by some sort of disorder.” He suggested that the Respondent was using Eliza as “a pawn in her affectation,” and that perhaps she needed counselling. Ms. Swan responded promptly on October 6, 2021, asking what the Applicant was proposing for Thanksgiving weekend. She also requested that the Applicant cease insulting the Respondent in his communications, since this did not assist in the negotiation process.

In his response on October 6, 2021, the Applicant again referred to the Respondent as “Oppositional and Defiant,” and asked for an overnight visit with Eliza and that the location for parenting exchanges be changed. Before Ms. Swan was able to respond, he sent another email on October 8, 2021 demanding a response by the end of the day, failing which he would simply make a decision on his own. 7. On Saturday October 23, 2021 at 9:17 p.m., the Applicant sent Ms.

Swan and the Respondent an email declaring that commencing with his visit the next day, Sunday October 24, 2021, he would be keeping Eliza until 8:00 p.m. on Sundays rather than the court-ordered time of 2:00 p.m. and he would be doing the parenting exchange at an address in Stoney Creek rather than the MacDonald’s stipulated in the court order. He asserted that he would be returning the child to the Respondent on Sunday October 31, 2021 at her home, rather than the MacDonald’s, and at 6:00 p.m. rather than the court-ordered time of 2:00 p.m.

Furthermore, he stated that upon returning the child to the Respondent on that day, he would be going “trick or treating” with them in the Respondent’s neighbourhood. Finally, the Applicant dictated that for his visit commencing November 7, 2021, he would be keeping the child until the following Thursday November 11, 2021. In this email, he stated that the only other option was for the Respondent to continue to abuse Eliza by alienating her from him, and that this alienation was established at the court appearance on September 10, 2021.

In response to this email, the Respondent was compelled to contact her counsel on an urgent basis over the weekend. Ms. Swan sent an urgent email to the Applicant asking him to confirm that he would adhere to the terms of the September 10, 2021 order, failing which the Respondent would not be bringing Eliza for the visit the next day. The Applicant responded on October 24, 2021, stating that he would comply. However, in that email, he accused Ms.

Swan of supporting family conflict, accused both her and the Respondent of failing to abide by MacLeod J.’s direction that they promote a meaningful relationship between him and Eliza, asserted that the Respondent was abusing Eliza by keeping her from the court-ordered parenting time with him and that Ms. Swan was enabling that abuse, and accused Ms. Swan of using threats and ultimatums against Eliza to gain control over him. 8. On Friday November 5, 2021 at 4:48 p.m., the Applicant sent Ms.

Swan and the Respondent another email requesting additional time with Eliza starting the next day, Saturday November 6, 2021 at 1:00 p.m., until Sunday November 7, 2021 at 7:00 p.m. He stated that he would be attending the Respondent’s home rather than the MacDonald’s at 1:00 p.m. unless he heard back that this was not acceptable. Again, this email sent the Respondent and her counsel into urgent reaction mode over the weekend. 9. On November 8, 2021 at 8:48 p.m., the Applicant sent Ms.

Swan and the Respondent another email asking that his visit on Thursday November 11, 2021 commence at 10:00 a.m. rather than the court-ordered time of 4:00 p.m., so that he could take Eliza to a Remembrance Day celebration at the Stoney Creek Cenotaph.

He noted that Remembrance Day is a very solemn occasion in his family, and that he would like to start Eliza “on the path of reverence for this occasion as I know that your client is indifferent to the reverence of our fallen family members.” Although Eliza is only 2 years of age, the Applicant expressed that Eliza should begin to participate in this celebration so that she could develop a sense of “what is important to her kin from both sides of her lineage.” He demanded that the Respondent advise him of her position the next day at the parenting exchange, failing which he would simply proceed with his plan and pick the child up at the Respondent’s home, rather than the MacDonald’s, on November 11th at 1:00 p.m.

He asked Ms. Swan to finally encourage the Respondent to be amicable. His comments in this email were disjointed, aggressive, intimidating and threatening in nature and tone. He stated as follows: I look forward to beginning a more friendly relationship with your client. It’s what Eliza wants right? Right? Right? Just kidding. I know what she wants. She told me so. You could never know my Sweet Beautiful Amazing Wonderful Lovely Smarty Pants Bimpy Gurl like I do. Have you even met her? With all due respect. Get your client to be agreeable soon.

I promise that you’ll get all of that hurt that you’re creating in Eliza’s life from your support of this animosity back on you somehow by karma. Could you please send me your goddamned LSUC #. I’ve only been asking for it for a fifth of Eliza’s life. It seems like you don’t want

me to make a complaint against you disrespecting the legislated changes. Have you had others? Are there many more? Remember when I asked you for the respect that you would show to your professional peers in the spring. Yeah. Here we are! The Applicant then accused Ms. Swan of not sharing all of his messages with the Respondent and stated: “I hope that you understand that I wish for you to exit Eliza’s life forthwith. You’re a blight on hers and Amanda’s existence that will be eradicated next time we’re in court if I have my way. That’s my hope.

Please stop taking advantage of your client’s anxiety issues to pad your bank account. It’s pretty despicable even for you. Despite being against the law. The Applicant also stated in this email that he would not be using “that bullshit app” any longer, referring to the AppClose app that he is required to use pursuant to the September 10, 2021 order, and stated that his agreement to anything that he was forced to accept was very tenuous. 10. Despite the caustic nature of the Applicant’s email on November 8, 2021, Ms.

Swan responded calmly and respectfully on November 9, 2021 a 10:47 a.m., asking him once again to stop sending threatening correspondence. She noted that he was making on average 2 to 3 requests each week to change the existing order. Nonetheless, she noted that he had not set out a clear proposal for November 11th, since he had not specified when he wished to return Eliza to the Respondent’s care. She asked him to clarify this point so that she could seek instructions about his request from the Respondent. The Applicant’s response was once again disrespectful and malicious in nature.

He denied having been threatening in his email and accused the Respondent of not complying with certain aspects of previous orders. He did not provide a suggestion for an end time to the November 11th visit. Instead, he made the following discourteous comments: In plain English. If I don’t hear from your client tonight in person that she desires to prevent Eliza spending the day with me on Thursday then I will show up at her home to pick Eliza up at 10:00 a.m. on Thursday November 11, 2021 as I will consider that she is in agreement of such by her lack of disapproval.

Should you require it I can translate that to French or Spanish for you or I can recommend an excellent ESL course for you to help with your reading comprehension skills. The Applicant went on to suggest that Ms. Swan and the Respondent were defying MacLeod J.’s directions to permit a meaningful relationship between him and Eliza by not conceding with his requests. He then made the following comments about Ms. Swan: Please stop using Eliza and your client as a means to get vengeance on me because Justice MacLeod made you look like a fool I court [stet]. It’s unprofessional and despicable.

Please stop preying on Ms. Coupland’s severe anxiety and encourage her to be more peaceful as Justice MacLeod encouraged you to do in our last hearing. 11. The Applicant’s communications became even more concerning on November 10, 2021. On that evening, commencing at 8:06 p.m., he sent six separate emails to Ms. Swan and the Respondent. The first two were identical. In those emails, he accused Ms. Swan again of taking advantage of the Respondent’s alleged anxieties, and claimed that after December 1st, he would reach agreement with the Respondent about his parenting time regardless of how hard it was for Ms.

Swan to gain her cooperation. The clear message was that he intended to start exerting increased pressure on the Respondent directly to cave into his demands for more parenting time with Eliza. He announced that he was “done” with being patient, and that he would soon be making decisions for Eliza that did not include the Respondent’s agreement. He accused Ms. Swan of attempting to bankrupt him and asserted “Please provide me with a valid reason why Eliza can’t spend the night with me by Thursday November 11, 2021 at 4:00 p.m. or that’s what she’ll be doing until Sunday.

Seriously, are you’re [stet] done helping your client hurt my child, or not, your choice JSwan.” He alleged that communication, expectations and contact between him and the Respondent were being impeded by Ms. Swan’s presence and accused Ms. Swan once again of being involved simply for financial gain. He reiterated that MacLeod J. had made Swan “look like an idiot,” and added as follows: Is that all Eliza’s well being is worth to you. A paycheck.

I’m sorry that you’re barren but that doesn’t mean that Eliza has to suffer because you had a verbal tongue lashing from a judge during one of our interactions about her. Do you really want to progress this any further. I can dig deeper. 12. In his third email dated November 10, 2021, the Applicant stated as follows: Just so that you know, I’m now devoted to making sure that you, personally, cannot hurt any more kids like you’re hurting Eliza. You’re my next project. This is the last communication the you [stet] will receive from me. I am no longer in agreement with the bullshit that is hurting Eliza. 13.

In a further email to Ms. Swan and the Respondent on November 19, 2021 at 9:19 p.m., the Applicant continued to berate Ms. Swan and the Respondent and to accuse them of abusing Eliza by not complying with his demands. The Applicant appears to have become increasingly dysregulated by this point, as there are many typographical errors in his email. He accused Ms. Swan again of taking advantage of the Respondent’s alleged anxiety, told her to “grow up,” once again called her “a blight on Family Law,” and suggested that she “pivot to Injury Law dur [stet] to your penchant for hurting children.” 14.

In his final message dated November 10, 2021, at 10:04 p.m., the Applicant believed that he could no longer email Ms. Swan directly and therefore directed the message solely to the Respondent. He continued to berate the Respondent for not conceding to his demands and stated “Does Eliza keep remembering that her daddy is a piece of shit how you would have it or does Eliza get to enjoy a life with her daddy… You’re a bit bad mother. Maybe you can let go of the bad ideology that your mother and sister and the system made you think was normal so that Eliza can have a normal life like all of her friends in grade 3.

Or 4. Or 5. Or 6. Are you a monster or not. I’m waiting to find out.” 15. The Respondent allowed the Applicant to have his scheduled visit with Eliza on Sunday November 14, 2021, despite the concerning nature of the emails of November 9, 2021. As I have indicted, he claims that the Respondent attended the parenting exchange late on that day, and that she appeared to be intoxicated when she brought Eliza from her vehicle. The Respondent adamantly denies that she was intoxicated.

She states that she and Eliza had had a very bad night because Eliza could not sleep, and that she had therefore messaged the Applicant to ask that the visit start and end later so that they could get some rest. She also claims that the Applicant again pressured her at the time of the exchange to have more parenting time, and that he called her a “dumb twat” when she told him that she was not comfortable having that discussion.

There is no independent evidence to substantiate the Applicant’s concerns that the Respondent was intoxicated on November 14, 2021, and I note that the Applicant did not make a report to either the police or the Society to relay his concerns. Significantly, he claimed that there was a video of the Respondent stumbling across the parking lot towards her car, but he has not produced any such video. However, on November 19, 2021, he again sent several messages to Ms.

Swan and the Respondent, this time after midnight, setting out his alleged concerns relating to the Respondent’s presentation on November 14, 2021 for the first time. He relied on those alleged concerns to dictate that commencing on Sunday November 21, 2021, he would be keeping Eliza in his care every week from Sunday at 10:00 a.m. until Thursday evening at 7:00 p.m. He stated that he was no longer in agreement that the current court-

ordered parenting terms were providing the “meaningful relationship” that Justice MacLeod intended for Eliza, and relayed information about the daycare arrangements that he had made for Eliza during his planned extended parenting time with her. He acknowledged that he had confronted the Respondent about being intoxicated on November 14, 2021 at the parenting exchange on November 19, 2021, and that he had been pressuring her during exchanges to have extended overnight parenting time.

He suggested that the Respondent needed to make Eliza a priority “over her leisure, work, attitude, wants and wishes for herself,” and that her misguided views of him were based on her own anxieties. He added that Eliza would “enjoy a level of consistency that she has rarely had with your client since I left her abuse and will be introduced to being an integral member of a social society as children should be at her age.” He suggested that the Respondent would be permitted to see Eliza during his time provided that she “gets acquainted with Eliza’s real needs and wants.” 16.

On November 21, 2021, the Applicant also sent a text message to the Respondent’s best friend, Rachel Chabot, reiterating his intention to keep Eliza from Sunday morning until Thursday evening going forward, and threatening that the Respondent would lose Eliza “if she doesn’t smarten up really fucking fast.” [38] As I have previously noted, the Applicant did not respond to a request from Ms. Swan for confirmation that he would abide by the court order after his emails of November 19, 2021, and therefore the Respondent has not made Eliza available for parenting time since that date. Ms.

Swan advised the Applicant in correspondence dated November 23, 2021 that she would be bringing a motion seeking to change his parenting time to supervised visits only. [39] The Applicant’s conduct since September 10, 2021 in relation to his parenting time and his communications to Ms. Swan and the Respondent constitute family violence within the meaning of section 18(1) of the Children’s Law Reform Act . The communications have often been inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards Ms.

Swan, they have been sent to the Respondent as well and have been clearly designed to destroy a solicitor client relationship that the Respondent considers to be critical to ensure the safety and wellbeing of herself and her two children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the Respondent. The Applicant has also been demanding and coercive with the Respondent during parenting time exchanges and has referred to her in derogatory terms in the presence of Eliza since September 10, 2021.

All of this behaviour has been extremely destabilizing for the Respondent and in turn, for Eliza. The Respondent has been fearful during every visit that the Applicant would not return Eliza to her care, and she has found the parenting time exchanges to be extremely nerve-wracking.

Her concerns respecting the Respondent’s mental health and abusive conduct have been so significant that she has taken time off work and is residing with family members in an attempt to cope with the situation. [40] Unfortunately, the Applicant’s inappropriate conduct since September 2021 is not isolated in nature; the evidence indicates that the Applicant has a long-standing history of engaging in family violence. As I have discussed, the Respondent states that he has been emotionally and verbally abusive and controlling towards her throughout their relationship and since the separation.

She has provided a detailed description of two occasions, in 2019 and 2020, when he exhibited extremely violent and frightening behaviour in the presence of the children Cora and Eliza. He has been verbally abusive towards Cora, and the evidence indicates that he was also verbally abusive towards his older special needs son.

The child Eliza would have been very seriously harmed in September 2020 if the Respondent had not intervened during the incident between the parties to prevent the stroller from toppling over. [41] The evidence before me raises serious concerns that the Respondent is either suffering from significant mental health difficulties or experiencing ongoing problems with substance abuse.

The Respondent’s evidence respecting his history of significant substance abuse problems, associated with volatile and aggressive behaviour, is very credible, particularly given that he has been convicted of two charges of impaired driving. It appears that he has only recently had his driver’s licence reinstated, and that he can only drive his vehicle if he tests negative for alcohol on a breathalyzer machine. [42] The Applicant does not acknowledge any of the concerns outlined above.

There is no evidence that he has engaged in any counselling or consistent, long-term substance abuse treatment and relapse prevention services, or that he recognizes a need to do so. He denies having ever subjected or exposed Eliza to any abuse, and he claims that there have been no concerns about his parenting time with her since September 2021. There is no independent evidence about how those visits have gone, but significantly, the Respondent states that Eliza has begun to exhibit uncharacteristic violent behaviour since the visits began, including a recent incident when she kicked the family cat.

The Applicant admits that he is a “difficult and cantankerous” person, as MacLeod J. described him in his endorsement of September 10, 2021, but he claims that his conduct has been justified based on his concerns about the Respondent. First, as discussed above, he alleged that the Respondent was intoxicated at the parenting exchange on November 14, 2021. The Respondent had a credible explanation for her presentation that day, and there is no independent evidence to corroborate the Applicant’s allegation. Furthermore, there is no evidence that the Respondent has a history of inappropriate alcohol use.

The Applicant also alleged on November 10, 2021 that the Respondent had used cocaine the previous weekend, without providing any proof whatsoever in support of this serious allegation. The Applicant further claims that the Respondent has engaged in a mission to alienate him from Eliza, and that his conduct is attributable to his frustration with this alleged alienating behaviour. He also accuses Ms. Swan of being complicit in this alienation by representing the Respondent in this proceeding. I do not accept his claims of alienating behaviour by the Respondent.

The material before me supports a finding that the Respondent has had very legitimate concerns about the Applicant’s substance abuse, mental health, abusive conduct and unpredictable violent outbursts throughout the parties’ relationship and since their separation. The Applicant’s inappropriate conduct has been directed not only towards the Respondent but also to third parties, including Ms. Swan and the staff of Brayden.

Despite these concerns, the Respondent has made numerous attempts during previous separations and since the parties’ final separation in September 2020 to ensure that the Applicant maintains a meaningful relationship with Eliza. She initially facilitated parenting time in her presence, despite the history of family violence and the stress that ongoing contact with the Applicant caused her. She agreed to parenting time supervised by Brayden, but the Applicant completely sabotaged efforts by that agency to serve him and the child.

Since September 10, 2021, she has attempted to work cooperatively with the Applicant to accommodate some of his parenting time requests, only to be met with aggressive and vitriolic responses. She continued to permit the Applicant to have his parenting time until November 21, 2021 despite his numerous threats to keep Eliza from her at the end of his time. Notwithstanding her ongoing serious concerns, she has proposed

supervised parenting time in her cross motion rather than requesting a cessation of contact altogether. The Respondent’s conduct towards the Applicant in regard to parenting matters has in my view been beyond reproach. [43] By way of summery, having carefully considered all of the evidence and the concerns described above, I conclude that it is in Eliza’s best interests that the Applicant’s parenting time be limited to visits supervised by either Thrive Counselling or the Society if it consents to providing supervision, and no more than twice per week for two hours.

The attempt to implement unsupervised parenting time has enabled the Applicant to perpetuate his history of family violence against the Respondent. It has caused a great deal of distress and disruption for Eliza’s primary caregiver, which has in turn been detrimental to Eliza’s overall well-being and stability. Eliza has been showing signs of emotional distress since the unsupervised visits began in the form of violent behaviour that she never exhibited in the past. There are in my view very significant concerns about either the Applicant’s mental health or ongoing substance abuse issues.

He presents as incapable of regulating his emotions and reactions appropriately on a consistent basis. In the past, he has insisted that there is no need for him to refrain from consuming alcohol or marijuana while in a care-giving role. He has a history of violence and emotional and verbal abuse towards family members when he is intoxicated.

Given his negative view of the Respondent and the numerous derogatory comments that he has made about her in the email communications and his personal notes since September 2021, there are very serious concerns that he would make negative comments about the Respondent to the child during unsupervised visits. He cannot be trusted to abide by a court order permitting him unsupervised time or to return Eliza to the Respondent at the end of his parenting periods. In addition, he has begun to make very serious unsubstantiated allegations of substance abuse by the Respondent.

He does not acknowledge any of these concerns and has not demonstrated a willingness to engage in services to resolve them. Having regard for all of these concerns, the Applicant simply cannot be trusted to have unsupervised parenting time with Eliza in a manner that supports her safety and wellbeing. Moreover, I conclude that the supervision must be either by the Society, if it consents, or a professional supervision service or agency.

Neither the Respondent nor Brayden have been able to manage the Applicant’s controlling, coercive and disruptive behaviour in relation to parenting time, and therefore I conclude that supervision by a family member or another member of the community would simply result in severe stress for that person and more challenges and chaos for this family. In fact, given the present state of affairs, I have serious reservations as to the ability of any supervised parenting time agency to manage the Applicant’s behaviour and demands more successfully than Brayden.

Time will tell whether these reservations are well-founded, and it is my sincere hope that the Applicant will be more cooperative this time around with respect to the supervision services that are implemented. [44] I have considered the Respondent’s request for a restraining order. She bases this request on the concerns respecting family violence and her claim that the Applicant has been driving past her home and the residence of the maternal grandmother, who cares for Eliza while the Respondent works.

The evidence does not satisfy me that the Applicant has engaged in stalking behaviour in the vicinity of the two residences. He acknowledges having driven by the residences on November 21, 2021 in an attempt to locate Eliza, and on one other occasion in front of the Respondent’s home. Given that I am ordering supervised parenting time, there will be no need for the parties to have face to face contact, and this will alleviate some of the concerns respecting the Applicant’s abusive conduct towards the Respondent.

I am of the view that the remainder of the concerns can be addressed at this point by way of a general order prohibiting the Applicant from being within 100 meters of the Respondent’s place of residence, her place of work and the home of the maternal grandmother Faith Coupland, and requiring that any communications between the parties be either through counsel or a third party agreed to in advance in writing between the parties. I am including terms in my order aimed at ensuring that the Applicant’s communications with counsel are civil.

I am also ordering that if the Applicant breaches these terms regarding communication, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(

a) of the Family Law Rules.

I emphasize that if the Applicant does not comply with these terms, or if he engages in any further type of intimidating conduct towards the Respondent, then the Respondent may to apply to this court any day of the week on an urgent basis to renew her request for a police enforced restraining order. [ 20 ] The evidence carefully reviewed by Justice Chappel was presented at the trial before me. [ 21 ] Despite the warning afforded to the father by Justice Chappel’s reasons and Order, the father did not abide by the terms of her Order and the mother returned the matter to court as Justice Chappel provided due the father’s breach of the Order. [ 22 ] On February 11, 2022 Justice Gordon found the father to have breached the communication provision of Justice Chappel’s order twenty-five times and awarded costs of $5,000.00 for the breaches and $500.00 in costs for the motion. [ 23 ] On June 2, 2022, Justice Bale granted the mother’s request for a restraining order.

The father brought a motion with respect to his parenting time also returnable before Justice Bale. [ 24 ] Justice Bale reviewed the evidence before her and provided the following reasons: [3] The Applicant father’s Notice of Motion seeks a complete overhaul of the current parenting terms provided for in the Temporary Order of the Honourable Mme. Justice D. Chappel, dated December 13, 2021, including approximately 20 claims for substantive relief.

During argument the Applicant appropriately re-focussed his position to request variation of paragraph 2 of the Temporary Order of Justice Chappel to request that his supervised parenting time take place at Dalhousie Place in Brantford, Ontario. [4] The Respondent mother is opposed to a variation of the order. In essence, she asserts that supervision is no longer possible through Thrive Counselling, solely as a result of the Applicant father’s behavioural issues.

She does not wish to be inconvenienced by travel to distant supervision centres, when the father’s poor conduct is the cause of the family’s inability to use local services. [5] Further, the Respondent mother seeks to renew her request for a restraining order which prevents the Applicant from contact and communication with the Respondent, and from attending at her place of residence, employment, the home of her mother, and her counsel’s law office. She asserts that the father’s intimidating conduct has not improved, as optimistically

contemplated within the decision of Chappel J., and she continues to fear for her safety and for the safety of her family. The Respondent also seeks an order preventing the Applicant from bringing further motions without leave of the court. The Applicant is opposed to these requests. [6] A detailed review of the relevant background in this matter is contained within the judgment of Justice Chappel dated December 13, 2021 and will not be repeated. The following information however is highlighted for purposes of these motions: a. The parties have one child together, namely Eliza Coupland, born May 8, 2019.

Eliza is now 3 years of age. b. The parties separated for a final time on September 22, 2020. c. The Children’s Aid Society of Hamilton has had past involvement with this family. d. On April 8, 2021 a Temporary Without Prejudice Order was made by Justice M. Donohue, wherein the Applicant father was granted weekly parenting time with the child, to be supervised through Brayden Supervision Services. e. The father enjoyed supervised parenting visits on 8 occasions between April 2021 until August 2021.

Brayden Supervision Services declined to provide further services to this family a result of issues arising in their dealings with the Applicant father. f. On September 10, 2021 a Temporary Order was made by Justice R. MacLeod, permitting unsupervised parenting time between the Applicant and Eliza on Tuesdays, Thursdays and Sundays. g. On December 13, 2021 the terms of Justice MacLeod’s Temporary Order were varied by the subsequent Temporary Order of Justice D. Chappel.

The Applicant’s parenting time with Eliza was again ordered to be supervised – this time through either Thrive Counselling or through the Children’s Aid 3 Society of Hamilton for a period of up to two hours, twice weekly. Further, in an attempt to manage the Applicant’s behaviours, the court placed restrictions on the Applicant’s attendance at the mother’s home and work, and the maternal grandmother’s home, and on written communications between the Applicant and the Respondent and her counsel.

The court ordered that for each breach of these restrictions the Respondent mother could apply for an order of costs, pursuant to Rule 1(8)(

a) of the Family Law Rules. h. On February 11, 2022 the matter returned to court, this time before Justice D. Gordon. The mother was granted costs of $5,000.00 for approximately 25 breaches of the terms of the Temporary Order of Justice Chappel . ANALYSIS [7] As was explained to the Applicant during the conduct of the motion, the starting point for analysis on these motions is the December 13, 2021 Temporary Order of Justice Chappel. That is, the judgment of Justice Chappel is presumptively correct, and this court cannot go behind that order nor question the correctness of the terms imposed. A.

Issue #1: Variation of Parenting Terms [8] The applicable law as it pertains to the father’s request for variation of parenting terms was thoroughly and ably laid out for the parties in paragraphs 18-27, and 29-32 of Justice Chappel’s December 13, 2021 decision in this matter: 2021 ONSC 8186 . I would add to this review of the law, that although the legislation does not set out a specific test with respect to varying an interim order, the change must be one that results in a compelling reason to vary the previous order: see Radojevic v. Radojevic, 2020 ONSC 5868 , at para. 26 .

Specifically, in requesting a temporary change to the existing terms of a Temporary Order, the moving party faces a strong onus to produce cogent and compelling evidence in favour of a change in the child’s best interests. [9] I have thoroughly reviewed Justice Chappel’s Reason’s for Judgment dated December 13, 2021 and note the following: a.

The court found that the father’s conduct from September 10, 2021 to the date of the motion, and in particular his communications with the Respondent directly and through her counsel, constituted family violence within the meaning of s. 18(1) of the Children’s Law Reform Act . b. The court was specifically concerned that the father’s volatile behaviour might be as a result of significant mental health issues or ongoing problems with substance abuse. c.

The father did not acknowledge any wrongdoing or real concerns pertaining to his actions or conduct and was focussed upon the role of the Respondent and her counsel in the conflict. [10] After thorough consideration of the motion before her, Justice Chappel specifically concluded that “it is clearly in Eliza’s best interests that the Applicant’s parenting time with her be supervised by a professional agency (italics added) until the Applicant accesses services to address the concerns regarding his well-being and behaviour and demonstrates progress in addressing those concerns”.

On this basis, the December 13, 2021 Temporary Order provided that the father shall have parenting time with Eliza, supervised by the Children’s Aid Society of Hamilton if they consent to supervise and/or through Thrive Counselling.

Parenting time was to be no more than twice per week for two hours on each occasion. [11] On this variation motion the Applicant was urged to focus his submissions on explaining to the court ‘what has changed’ since the December 2021 Order of Justice Chappel, that would justify a variation of the parenting terms in the best interests of Eliza, rather than attempting to relitigate the issues and repeating to the court his opinion as to why Justice Chappel was incorrect in her decision.

He thereafter was able to focus his attention on the difficulties that have arisen in arranging supervised parenting time through a professional agency. [12] First, the parties agree that the Hamilton Children’s Aid Society did not consent to supervising the father’s parenting time. Second, it is clear that on January 20, 2022, a Coordinator with the Thrive Counselling Family Visiting Program advised, in writing, that they would not be proceeding with processing the family’s application for supervision through the agency: recent

communications with the father led them to conclude that he would have difficulty cooperating respectfully in the program, a basic requirement for the provision of services. 1 It appears that a very unproductive telephone conversation took place between the father and the Thrive program coordinator which led to this decision.

As a result of these circumstances, the Applicant father has now not seen the child since November 2021. [13] I am satisfied that the Children’s Aid Society’s decision not to assist with supervision, and the administrative decision at Thrive Counselling not to provide supervisory services for this family, is a material change of circumstances. In a footnote Justice Bale noted that a similar issue arose in relation to the provision of services to this family by Brayden Supervision Services as per the correspondence of D. Sliwinski, Managing Director of Brayden Supervision Services, dated August 10, 2021.

Justice Chappel found supervised parenting time between father and child to be in the best interests of Eliza. Had the court known in December 2021 that the CAS and Thrive would be unable/unwilling to provide assistance, the terms of the Applicant’s supervised parenting time would have included provision for supervision by another professional supervision agency. [14] This issue must be remedied in the child’s best interests. The court is presented with two options: a.

The Applicant father advises the court that Dalhousie Place in Brantford, Ontario could presently accommodate one supervised parenting visit of one hour per week. He asserts that the added travel time to Dalhousie Place is approximately 12 minutes each way from the mother’s home. He is anxious to resume his parenting time with the child, as it has now been six months since he has shared time with Eliza. b. The Respondent mother requests that supervised parenting time take place at the YWCA Family Access Centre in Hamilton.

She advises that her work and family commitments render added travel time to Brantford an unfair burden upon her. She advises that she has placed her name on the YWCA Hamilton waitlist for local supervision services. She is unaware of the length of the waitlist, although the Affidavit material filed does not inspire confidence that the wait will be short. [15] In considering these options in the best interests of Eliza, I conclude that, at this time, Dalhousie Place is the best option.

The inconvenience of added travel time to Brantford is counter-balanced by a reduction of two parenting visits per week to one parenting visit per week. As such, I am satisfied that paragraph 3 of the Temporary Order of Justice Chappel dated December 13, 2021 must be modified as follows: Para. 3: The Applicant shall have supervised parenting time with the child Eliza Anne Marie Coupland, born May 9, 2019 (“the child”), as follows: a.

Commencing as soon as may be accommodated by the supervising agency, at Dalhousie Place in Brantford, Ontario for a maximum of one visit per week for up to two hours, as may be arranged and accommodated by Dalhousie Place; b. Commencing as soon as may be accommodated by the supervising agency, at the YWCA Family Access Centre in Hamilton, Ontario for a maximum of two visits per week for up to two hours, as may be arranged and accommodated by the YWCA Family Access Centre; and c.

Both parties shall forthwith ensure proper registration on the waitlist for supervision services at the YWCA Family Access Centre in Hamilton, Ontario, and upon acceptance and commencement of supervised parenting time at this centre, the father’s supervised parenting time at Dalhousie Place will be terminated. [16] To be clear, I find no other cogent or compelling evidence of a material change in circumstances which would warrant any other expansion of the father’s parenting time with Eliza at this time.

The Applicant has not acknowledged any of Justice Chappel’s concerns which formed the basis of the need for supervision, and in fact has continued to engage in the harmful pattern of conduct and communication which resulted in the restrictions on his parenting time, as discussed below. The Applicant’s requests for additional parenting time and joint decision-making authority are dismissed on this basis, to be explored more fulsomely at trial.

Further, his request for benefits coverage and reimbursement of costs, as claimed within the Notice of Motion dated February 2, 2022 lack the requisite 6 evidentiary foundation and are also dismissed on a without prejudice basis to be pursued further at trial. B. Issue #2: Renewal of Respondent’s Request for Restraining Order [17] On December 13, 2021 Justice Chappel declined to grant a formal restraining order in favour of the Respondent mother. Instead, she attempted to manage the Applicant’s conduct and communications with detailed orders and creative enforcement mechanisms.

However, the court emphasized that: “if the Applicant does not comply with these terms, or if he engages in any further type of intimidating conduct towards the Respondent, then the Respondent may apply to this court any day of the week on an urgent basis to renew her request for a police enforced restraining order”. [18] A motion was heard before Justice Gordon on February 4, 2022. A review of the court’s decision dated February 11, 2022 reveals that the Applicant’s conduct did not improve in the intervening period.

The court found that the Applicant father sent a derogatory and threatening email to the Respondent mother’s counsel on the very day that Justice Chappel’s endorsement was released, and thereafter continued to send hostile and abusive communications to both the Respondent and her counsel. [19] In his decision, Justice Gordon concluded that the Applicant intentionally attempted to harass the Respondent and her counsel with his bullying tactics and in doing so repeatedly breached paragraph 8 of the December 13, 2021 Order of Justice Chappel.

Specifically, he had done so 25 times by January 18, 2022 (when the motion materials were prepared). To sanction these breaches, Justice Gordon ordered costs of $5,000.00 payable by the Applicant to the Respondent payable forthwith. The Applicant has not complied with the costs award of Justice Gordon to date. [20] Of utmost concern to this court, and despite the recent and repeated warnings of both Justice Chappel and Justice Gordon, the Applicant father has continued in his overtly hostile communications. In particular:

a. On February 7, 2022 (after the enforcement motion was heard but prior to the release of Justice Gordon’s decision) the Applicant father sent email communications to the Respondent mother and her counsel. The email communications use profane language and attack the character and professional reputation of counsel. b. On February 7, 2022 the Applicant father also sent a direct text message to the Respondent mother threatening contempt. c. On February 8, 2022 the Applicant father sent email communications to both the Respondent and her counsel.

The father’s email references a “chance intersection” between the mother and father in front of the maternal grandmother’s driveway. He notes: “I did gain the knowledge of Eliza’s safety when I saw her arm flailing in the back seat on my way by your client and that prevented a call to the police tomorrow so that they could check on her wellbeing for me. So that’s a good thing. Please tell your client that I’m appreciative of her efforts to keep Eliza alive”. d. On February 14, 2022 the Applicant father emailed both the Respondent mother and her counsel multiple times.

In the series of emails produced to the court the Applicant: a. Continues to denigrate the Respondent and her counsel; b. Threatens that if he does not receive an immediate response to his request for parenting time that day, that he would attend at counsel’s office ‘to receive an answer’ and ‘to begin negotiations’; and c. Advises that he “will not be doing supervised access” with Eliza. e. On February 18, 2022 the Applicant again threatened to attend at the Respondent’s counsel’s office. f. On February 20, 2022 the Applicant sent further emails directly to the Respondent mother.

Within those emails he seems to suggest that his complaints made regarding the judiciary and the Respondent’s counsel can be “withdrawn at any time” but not “without absolute certainty that it is in Eliza’s best interest”. He continues to denigrate the Respondent and her counsel. g. On February 21, 2022 the Applicant father sent another email to the Respondent and to her counsel wherein he denigrates the character of counsel (e.g., calls her “a crappy human being”, a “dumbass”, a “despicable human”, “sub-par lawyer”, etc.), and the mother (e.g., “a monster”, a “worthless parent”, etc.).

He advises that both the Respondent and Justice Gordon are mistaken. Specifically, that financial consequences will not “make me comply with your demands”. The father also seems to suggest that counsel would be subjected to his physical “wrath” if she were a man. The email is somewhat rambling and disjointed and difficult to decipher at times. h. On February 24, 2022 the mother reported her concerns relating to the father’s email communications to the police. The police spoke to the father on the same day. In response, the father sent two further email communications to the Respondent that evening: a.

At 9:36 p.m.: “Hi, You’re absolutely delirious if you think that I’ll be letting go of Eliza at any point in her life. For the next 98 years I will be the ultimate description of what a father should be to her and, as has been so dramatically represented, that’s because I will never be subservient to YOU. Nice eh!”; and b. At 9:56 p.m.: The Applicant father emailed the mother “following [his] harassment by the HPS today and their selfish 8 treatment as such”.

Within the body of the email that follows, the Applicant describes his hate for some of the Respondent’s family members, and with respect to her counsel, the father advises - “She’s done”. i. On February 28, 2022 the Applicant again advises the Respondent’s counsel that he will be attending at her office if he does not receive a satisfactory response to demands contained within his email. j. On March 1, 2022 counsel for the Respondent sent formal correspondence to the Applicant which: a. Reminded him that he continued to be bound by the terms of communication ordered by Justice Chappel; b.

Requested payment of the costs award of Justice Gordon; c. Drew his attention to the criminal harassment provisions under the Criminal Code (as previously drawn to his attention by Justice Gordon); and d. Advised him in no uncertain circumstances that he was not welcome to attend at the office of the Respondent’s counsel at any time and that police would be called in response to any such attendance. k. On March 3, 2022 the Applicant sent a one-line email to counsel for the Respondent at 9:16 p.m. which simply reads “Goodnight Ms. “Piece of Shit Human being Swan”. l.

On March 5, 2022 and March 6, 2022 the Applicant cc’d counsel for the Respondent on emails sent to his former partner and mother of non-subject children. Within these exchanges he appears to believe counsel to be ‘acting illegally’ and in conspiracy with his former partner. m. On March 6, 2022 the Applicant sent another one-line email to counsel’s office staff, stating “Hello, Please tell your boss stop her illegal activities in my life immediately. Thank you”. n. On March 7, 2022 the Applicant sent a group text message to the Respondent, her counsel, and his former partner wherein he: a.

Calls his former partner a crappy human being and demands final settlement in 7 hours and 24 minutes; b. Alleges that both of his former partners have been acting in bad faith, refers to them as child abusers, idiots, and garbage

humans, and advises that they need serious mental health help; c. Uses profanity; d. Alleges that counsel is engaging in illegal activities, and refers to her as a hateful, despicable woman; e. Advises that he will destroy anyone who gets in the way of his relationship with his children; f. Refers to the recipients as baby-snatchers; g. Advises that he is “not ever leaving [their] lives”; and h. Advises that counsel’s “days are numbered”. o. On March 8, 2022 the Applicant sent a short email to the Respondent and her counsel accusing counsel of professionalmalfeasance. p.

On March 9, 2022 the Applicant sent an email to the Respondent and her counsel wherein he advises that he will be seekingcounsel’s “disbarment and/or disinclision (sic) from a bench assignment forever”. He advises that he would discuss withdrawinghis law society complaint against her if she ‘reverses her course of action in Eliza’s case”. In a second email, only to counsel, headvises that she “is the reason that this system is broken and I will use you as an example to change it before I die… JusticePazaratz won’t be there to defend you as I steer your fate to that end”. q.

On March 9, 2022 the Applicant again cc’d counsel on another (very acrimonious and disparaging) email to his formerpartner. r. On March 12, 2022 the Applicant emailed the Respondent and her counsel a notice that he would be bringing a claim in theOntario Court of Justice relating to counsel’s alleged interference in his proceeding against his former spouse. [21] The court is advised that on March 17, 2022, the father’s harassing communications with counsel and the Respondentinexplicably stopped.

The Respondent mother advises that she did not return the matter to court earlier because she enjoyed thereprieve from constant communications harassment between March 17, 2022 and May 4, 2022. [22] The father did not file any response or explanation for the very concerning communications he engaged in with theRespondent or with counsel as reviewed above. Instead, he simply argues that there is no basis for a restraining order because: 1. He has not communicated with her since March 17, 2022 and the Respondent herself is happy with the communicationsbetween them; and 2.

He has not violated the distance proximity restrictions imposed upon by Justice Chappel as it pertains to attending at themother’s residence, place of employment, or the home of the maternal grandmother. [23] Restraining Orders in family court proceedings are governed by s. 46 of the Family Law Act, R.S.O. 1990, c. F-3 asamended, and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended.

In this proceeding, pursuant to theChildren’s Law Reform Act, the court may make an interim restraining Order against the Applicant father if it is found that theRespondent mother has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody. [24] A thorough review of the key principles pertaining to restraining orders in family court proceedings can be found in the caseof Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506 , at para. 44: a. Restraining orders are serious and should not be ordered unless a clear case has been made out.

See: Ciffolillo v.Niewelglowski, 2007 ONCJ 469. b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospectiveemployers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect aperson’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181. c. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004ONCJ 195. d.

Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person tofear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254. e. The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154 ;McCall v. Res, supra. f. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei,2010 CarswellOnt 4464 (Ont. S.C.). g. It is not necessary for a responding party to have actually committed

an act, gesture or words of harassment, to justify arestraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have tohave an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated.See: Fuda v. Fuda, 2011 ONSC 1452. h. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible,

impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conductcomplained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004ONCJ 195. i. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts.There can be fears of a personal or subjective nature, but they must be related to a Respondent’s actions or words. A court mustbe able to connect or associate a Respondent’s actions or words with an Applicant’s fears. See: Fuda v.

Fuda, supra. j. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not beso compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242. k. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted.See: D.C. v. M.T.C. l. It is appropriate, in borderline cases, to consider the balancing prejudice to the Respondent, if the restraining order isgranted. See: D.C. v. M.T.C. m. A no-contact or communication order made pursuant to

section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party fromharassing the other party to third parties. See: F.K. v. M.C. n. A court is not precluded from making a final restraining order if a party has complied with a temporary order undersection 28 of the Children’s Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record ithas at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment.

Further, the court shouldbe alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continueonce the case ends. See: F.K. v. M.C. [25] It is clear that the conduct must be of a sort that a reasonable person would regard as disturbing, or as a source of anxietyor irritation to a substantial degree – not trivial or casual annoyance. It is a question of degree: a restraining order should not begranted unless a clear case has been made out: Sniderman v. Sniderman, (ON SC), [1981] O.J. No. 1119,Ciffolillo v.

Nieweglowski, 2007 ONCJ 469 at para. 23-24. [26] I am satisfied that this is a clear and appropriate case in which to grant a Temporary restraining order. I am satisfied thatthe Respondent mother’s fear for her physical and emotional safety, and for the safety of her children is reasonable in thecircumstances of this case. [27] In December 2021, Justice Chappel attempted to manage the Applicant’s increasingly harassing and intimidatingbehaviours by imposing restrictions on his communications with the Respondent. Within hours of the release of the court’sjudgment, he had breached those terms.

In fact, he breached the terms no less than 25 times over the next few months, and was‘fined’ for those violations by Justice Gordon in February 2022. [28] The Applicant did not learn his lesson. Instead, the father ignored the costs sanctions imposed upon him by Justice Gordon,and ignored the further warnings of the court and references to criminal harassment charges under the Criminal Code. Headvised the Respondent that she and Justice Gordon were mistaken – that financial consequences would have no impact on hisconduct.

True to his word, the Applicant continued on his campaign of intimidation and harassment of the Respondent and hercounsel, and breached the terms of paragraph 8 of Justice Chappel’s order at least ten more times in the following days. [29] When the Applicant was issued a warning by police, he immediately resorted to emailing the mother again, denigrating herintelligence and threatening her counsel. The Applicant’s 12 repeated threats to attend at counsel’s office are particularlyconcerning.

I interpret his words as a threat to resolve issues through physical intimidation and potential violence if he does notget the response he demands. These words are designed to cause the Respondent distress: fear of violence, and concern that theRespondent’s counsel will no longer be willing or able to continue to act on her behalf as a result of the Applicant’s intimidationtactics. [30] The father’s actions constitute far more than a nuisance to the mother. His behaviour is erratic and unpredictable.

At timeshis thought process appears distorted: he is unduly focused on the relationship between the Respondent and her counsel, ratherthan upon the best interests of the subject-child. This was evident not only in the written materials before the court, but withinthe oral submissions made on this motion. That the mother has enjoyed a brief period of reprieve from the father’s long-standingand persistent harassment does not detract from a reasonable fear that his behaviours could start again tomorrow.

The fatherprovided no explanation to the court as to the intensity and fervour of his previous communications, nor why they suddenlyabated. The Respondent mother should not be left to guess. Other less restrictive measures have failed to assist in governing theApplicant father’s conduct.

Threat of criminal consequence, in the form of a formal restraining order, is now necessary tocompel ongoing compliance. [31] It is appropriate to both limit communications with the Respondent mother and the children in her lawful care, and toprohibit the Applicant’s attendance at other locations where the mother is known to frequent, including her home, work, herchildren’s schools/places of childcare, and her counsel’s office.

A Temporary Restraining Order shall issue in the attached form. [32] Interestingly, the father’s Notice of Motion (at paragraph 2) requests a limit of one child focused, congenial, andinformative communication per week in writing on parenting issues. Given the pervasive difficulties in communications evidentin this matter, I agree that it is appropriate to limit the volume of communications. As such, communications between theApplicant and the Respondent’s legal counsel shall be limited to one written communication each per week, save and except asmay be required for

(

i) service of court documentation, (ii) in situations of urgency, or (iii) as otherwise agreed between the Applicant and counsel. To that effect, paragraph 8 of the Temporary Order of Justice Chappel, dated December 13, 2021, shall be varied to include the following additional provision: “Paragraph 8(d): Save and except (

i) as may be required for the service of court documentation, or (ii) in situations of urgency, or (iii) as may be agreed to in writing in advance, the Applicant and counsel for the Respondent shall exchange a maximum of one written communication with the other party each week”. Parties and counsel need not respond to any communications which offend these restrictions. ORDER [35] On the basis of the above: 1. A Temporary Restraining Order shall issue, as per the separate Form 25F: Restraining Order endorsed on today’s date; 2. The Temporary

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