Hartman v Fulton, 2011 ABQB 619

Court of Queen ’ s Bench of Alberta Citation: Hartman v Fulton, 2011 ABQB 619 Date: 20111006 Docket: FL03 30536 Registry: Edmonton Between: Breanna Hartman Applicant - and - Adam Fulton Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is a review of an Emergency Protection Order which was originally granted on August 11, 2011 by a Justice of the Peace who upon hearing evidence from the Claimant found that family violence had occurred, and that the Claimant had reason to believe that the family violence would continue.

The Respondent was ordered not to communicate with or contact the Claimant or his children. [ 2 ] The Respondent swore an Affidavit on September 22, 2011 which deposed that he was a journeyman pipe fitter, and that he had reviewed the Transcript of the evidence given by the Claimant on August 11, 2011. The Respondent opposes the Emergency Protection Order being confirmed with his children on it.

[ 3 ] In his Affidavit, the Respondent denies ever applying force to the Claimant other than limited force to defend himself against approximately ten attacks the Claimant had made on him. [ 4 ] The Respondent acknowledges that on these approximate ten occasions, drugs were being used, specifically marihuana, and that furthermore both parties often drank to intoxication. The Respondent acknowledges that his use of alcohol led him to being charged and convicted three times of impaired driving.

The Respondent does depose that he has since attended rehab in 2008 and more recently in 2011 and completed a twelve step program between February 24, 2011 to August 7, 2011. He provides the Court with confirmation of this program which seeks to treat alcoholism and addictions. [ 5 ] The Respondent goes on to depose that both the Claimant and he and have broken property when they were angry, damaged walls, and broken cupboard doors, but the children were never present.

The Respondents acknowledges that the Claimant broke a computer monitor by throwing it on the floor, when the children were present; and that she also broke his cell phone by throwing it out the front door onto the sidewalk, and tried to break windows out of his car by punching and kicking them. [ 6 ] The Respondent does acknowledge that he kicked a door in once himself before however this couple had children, and while both parties were drinking and intoxicated.

The kicking of the door occurred as a result of a “ joke ” played on him by the Claimant who locked him out of the house in the winter time when he was naked. The Claimant deposes there was no real conflict between the parties that night. [ 7 ] As for the ultimate separation that occurred at the end of July 2011, the Respondent denies that he was “ stalking ” the Claimant afterwards. The Respondent deposes that he to stay at a motel after the Claimant kicked him out of the house because that was the cheapest and closest convenient place at which he could store his belongings.

The Respondent deposes that he cannot driver without an Interlock device, therefore he had to live at a convenient location a block and a half away from the former matrimonial home so that he could push his vehicle (without the keys in it) to the motel. [ 8 ] On August 6, 2011 when the Respondent did get access to the children when the Claimant ’ s father invited him to the playground, located a block away from the matrimonial home in the opposite direction of the motel, he was charged with criminal harassment and released on the condition that he have no contact with the Claimant.

His release conditions however do stipulate that access to the children can be arranged through a third party. [ 9 ] In response the Claimant opposes on September 28, 2011 that the Respondent has a history of abuse and depression, and he does not always take his medications that control his various conditions and problems.

The Claimant goes on to detail numerous historical episodes, as well as current incidents in which she alleges that the Respondent still suffers from serious medical and addiction problems. [ 10 ] The Claimant also deposes that the events that led up to the August 6, 2011 arrest of the Respondent by police were quite serious, that is why out of fear for the safety of herself and the children based on events surrounding the separation and the criminal charge that she obtained the Emergency Protection Order on August 11, 2011. [ 11 ] The Claimant acknowledges that she and the Respondent have had a dysfunctional relationship for a number of years.

She acknowledges pushing the Respondent ’ s computer monitor off the table, but as a result of discovering a drug needle in the couch; and she acknowledges throwing the Respondent ’ s cellular phone, but it was during an attempt to take the Respondent to rehabilitation. [ 12 ] The Claimant denies that the Respondent pushed his car to the motel, and says that there were four individuals plus herself present in her home that day who witnessed the Respondent drive his car away from the house. [ 13 ] The Claimant submits that she does not believe it is in the children ’ s best interests to be in the Respondent ’ s presence unsupervised while he is continuing to be under the influence of drugs and alcohol.

Conclusion [ 14 ] A review of an Emergency Protection Order is a serious and important matter, but generally it does not include as part of that review parenting and access issues, unless both parties consent which is not the case here. The Respondent seeks the removal of the two children of the relationship from the Emergency Protection Order for that reason.

The children are presently 1 and 3 years of age. [ 15 ] While both parties make serious allegations in this matter, I do note that the Claimant has only recently begun to take steps to clarify the parenting situation, even though the Emergency Protection Order was granted more than six weeks prior. [ 16 ] When this matter was first heard on September 22, 2011, I extended the Claimant ’ s Emergency Protection Order which includes the children for a period of one month, while a parenting application could be made.

I now understand that the Claimant has made a parenting and child support application returnable on October 20, 2011, which Family Law Act claim was filed on September 30, 2011. The Respondent has indicated that he will have counsel defend the application. [ 17 ] As such I am prepared to confirm the Emergency Protection Order for a further period of nine months, but I conclude that the children can be removed from the Emergency Protection Order now that a parenting application has been made.

The Respondent however is still subject to the terms of the no contact provisions of his release on the criminal harassment charges. Any further Order made by a Court of competent jurisdiction for the purposes of facilitating parenting time to the children is an exception as I understand it to the release provisions. [ 18 ] In any event any contact between the Applicant and the Respondent expressly authorized by a further Court Order made by a Court of competent jurisdiction for the purposes of facilitating parenting time to the children shall not constitute a breach of this Emergency Protection Order.

Nor will the Respondent mailing child support cheques, or while in the presence of legal counsel, during mediation, or during necessary Court appearances constitute a breach of this Emergency Protection Order. [ 19 ] There is also still the outstanding matter of the Respondent having to remove his personal belongings and papers, along with other property agreed upon by the parties from the residence.

In this regard I further direct a Peace Officer shall accompany the Respondent to the residence on one occasion, within the next 45 days to supervise the removal of the Respondent ’ s personal belongings and papers, and any other property as agreed upon by the parties. [ 20 ] My decision to remove the children from the Emergency Protection Order is because parenting matters should not ordinarily be dealt with within an Emergency Protection Order, particularly now that the parenting issue has been brought forward to the Courts and is pending a hearing and a decision.

To do otherwise would be to effectively allow a claimant to use the Emergency Protection Order provisions to obtain ex parte “ no contact ” orders whose intended effect could be to frustrate or to prevent the other parent from visiting or seeking custody of their children. [ 21 ] The issue of the Court ’ s jurisdiction in Emergency Protection Order matters was clearly addressed L.L. v D.G. , 2009 ABCA 387 by our Court of Appeal at paragraphs 9 - 11 which reads as follows: – 9 In this case, the chambers judge elected to revoke the EPO and impose mutual restraining orders with certain conditions.

That was done with the consent of the parties and the chambers judge's jurisdiction to do so is not now disputed. However, the chambers judge went on to also direct that the father be entitled to supervised access to the child every other weekend, and set times and terms to facilitate that access. 10 The appellant did not consent to this aspect of the chambers judge's order. On the contrary, she protested throughout the hearing that she expected access to be decided at a later date by the Provincial Court, where the father had an outstanding application to address that issue.

The appellant also repeatedly stressed that she had no notice that access would be addressed as part of the EPO review, that she had just received the respondent's affidavit that morning, and had not been able to prepare a response to it. It appears from the transcript that these concerns moved the chambers judge to direct that access be supervised.

11 While we fully understand the chambers judge's desire to help the parties resolve this problem, which they had not been able to resolve on their own, we agree with the appellant that the chambers judge was without jurisdiction to address access at the EPO review hearing. This was not a situation where both parties had been co-parenting the child and the EPO (or the restraining order, which was substituted for the EPO) needed to consider how that parenting arrangement (or access) could continue with such an order in place. Rather, access was an outstanding issue between the parties before the EPO was granted.

In such circumstances the Act did not grant the chambers judge jurisdiction to deal with access and there was no other application before him requesting him to do so. For that reason, we allow the appeal and vacate the portion of the judge's order that provided the respondent access to the child. [ 22 ] The children will be removed from the Emergency Protection Order, as there are no grounds for their inclusion, and the parenting issues are not properly before me. Heard on the 22 nd day of September, 2011. Dated at the City of Edmonton, Alberta this 6 th day of October, 2011. Donald Lee J.C.Q.B.A.

Appearances: Robert Tropak Attia Reeves Tensfeldt Snow for the Applicant Barry McMullan for the Respondent