Munroe v Munroe, 2011 ABQB 438

Court of Queen ’ s Bench of Alberta Citation: Munroe v Munroe, 2011 ABQB 438 Date: 20110706 Docket: FL03 29692 Registry: Edmonton Between: June Munroe Claimant - and - Ralph Munroe Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The issue currently before the Court is whether this Court should on review of a Provincial Court Emergency Protection Order granted on June 7, 2011 sustain a Provincial Court Judge’s direction that the Respondent’s guns, bows and arrows, or hunting knives owned or in his possession should be seized by a Peace Officer. The Claimant submits that such seizure is necessary in the circumstances given the Respondent’s mental instability, and given the arsenal of weapons that the Respondent owns.

The Respondent submits that the seizure provision with respect to these weapons would be illegal. [ 2 ] This is a mature couple who until their separation in August 2010 had spent approximately 15 years together – 5 years in an intimate relationship, followed by 10 years as a married couple. This is also a mature couple in that the Claimant is 47½ years of age and the Respondent is a senior citizen. There are no children involved. The Claimant does apparently have certain health issues involving heart problems.

[ 3 ] Based on the Affidavit in support of the Emergency Protection Order and the Provincial Court Transcripts, it appears that these parties had a normal long term relationship until approximately July 2010 when according to the Claimant the Respondent became a completely different person. It is alleged that he began drinking excessively, became very moody and angry and became mean and verbally abusive.

The Respondent is not alleged to have ever hit the Claimant. [ 4 ] With respect to the events that led up to the August 2010 separation, the Claimant testifies that she found a hunting knife in a pouch underneath the Respondent’s pillow that she had never seen before, and that on the following morning the Respondent came back from the lake acting very strange. His truck was also apparently damaged as if it had been in some sort of accident, or had been through the bush.

The Claimant then testified that she started receiving harassing telephone calls, that she believes that the Respondent was associated with, although the Respondent apparently did not say anything directly to the Claimant. The Claimant also alleges that the Respondent did harass her parents and her friends by telephone. It is at this time in August 2010 that she ends the relationship. [ 5 ] Currently the Respondent does not know where the Applicant lives, but is aware of her place of employment.

The Claimant has changed her home telephone number and her cell phone number so he is no longer able to call her at home or on her cell phone, but she alleges that he sometimes phones on a private number at work. Most of the time other persons however answer that line at work. [ 6 ] In one of the recent telephone calls to the Claimant’s parents, the Respondent is alleged to have threatened to commit suicide. The Claimant deposes that the Respondent has in addition to the hunting knife, a hunting bow and arrows, and 8 rifles.

The Claimant acknowledges that the Respondent has a permit the rifles and as far as she knew he used to properly store the rifles. [ 7 ] The Claimant submits that the Respondent’s recent threat to commit suicide, and the fact that he started drinking again around Easter, means that he is unstable and may hurt himself or others.

Conclusion [ 8 ] The primary fear at this point is that the Respondent’s arsenal of weapons would be used by the Respondent to hurt himself, although counsel for the Claimant submits that it is only common sense that this arsenal could be directed to harm the Claimant. [ 9 ] The portion of the Protection Against Family Violence Act , R.S.A. 2000, c. P-27 that deals with directing the seizure of weapons is found at paragraph 2 which reads as follows:– 2(1) An order under this

section may be granted by a judge of the Provincial Court or a designated justice of the peace, on application without notice to the respondent, if the judge or justice of the peace determines (

a) that family violence has occurred, (a.1) that the claimant has reason to believe that the respondent will continue or resume carrying out family violence, and (

b) that, by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant. . . .

(3) An order under this

section may include any or all of the following:

(

a) a provision restraining the respondent from attending at or near or entering any specified place that is attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members; (

b) a provision restraining the respondent from communicating with or contacting the claimant and other specified persons; (

c) a provision granting the claimant and other family members exclusive occupation of the residence for a specified period, regardless of whether the residence is jointly owned or leased by the parties or solely owned or leased by one of the parties; (

d) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time; (

e) a provision directing a peace officer to accompany a specified person to the residence within a specified time to supervise the removal of personal belongings in order to ensure the protection of the claimant; (

f) a provision directing the seizure and storage of weapons where the weapons have been used or have been threatened to be used to commit family violence ; (

g) any other provision that the judge of the Provincial Court or designated justice of the peace considers necessary to provide for the immediate protection of the claimant.

Emphasis Added [ 10 ] I have no difficulty in confirming and extending the Emergency Protection Order provision that require the Respondent not to attend within 200 metres of the Applicant’s work place, or 100 metres elsewhere in the Province, and not to directly or indirectly contact he Claimant. [ 11 ] However I do have difficulty with respect to the requirement that a Peace Officer shall seize and store any guns, bows and arrows, hunting knives owned or in the possession of the Respondent.

The proviso directing for the seizure and storage of weapons is only in effect where the weapons “have been used or have been threatened to be used to commit family violence”. The weapons in question have not been used or have been threatened to be used to commit family violence, although the presence of the hunting knife did lead to the Claimant leaving the Respondent.

That however occurred almost a year ago, and nothing ever directly transpired involving the hunting knife either in August 2010 or subsequently. [ 12 ] As for the Respondent’s recent alleged suicide threats, and their connection to the arsenal of weapons in the Respondent’s possession, they represent no direct threat in relationship to the Claimant. The only threat is the Respondent’s alleged intention to harm himself.

The purpose of the Emergency Protection Order is not to prevent the Respondent from harming himself. [ 13 ] Furthermore even if the weapons were ordered to be seized as part of this Emergency Protection Order, the Respondent can still harm himself or kill himself by other means. The weapons are legally in the possession of the Respondent, and should not be removed from his possession by a police officer unless it otherwise lawful to do so. There is nothing illegal per se in the Respondent having this arsenal of weapons.

It may well be that the Respondent should consider giving up these items if he has the serious problems that are being alleged, but that is a decision that should be left up to him, and it is not something that should be imposed on him through the Protection Against Family Violence Act in these circumstances. [ 14 ] The Emergency Protection Order is confirmed for a period of one year without the provision providing for the seizure of the Respondent’s hunting knife, bow and arrow, or 8 rifles.

Heard on the 4 th day of July, 2011. Dated at the City of Edmonton, Alberta this 6 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Dawn L. Nelson Family Law Office for the Applicant Barry W. McMullan for the Respondent