ALL v BC, 2011 ABQB 702

Court of Queen ’ s Bench of Alberta Citation: ALL v BC, 2011 ABQB 702 Date: 20111116 Docket: FL10 03511, FL10 02720 Registry: Red Deer Between: ALL Claimant - and - BC Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] An Emergency Protection Order was granted to the Claimant in Red Deer Provincial Court on November 2, 2011, and it was brought forward before me on November 9, 2011 for review. The Claimant seeks a one year extension of the Emergency Protection Order, which application is vehemently opposed by the Respondent who denies all of the allegations of threats made by the Claimant, and accuses her of lying.

The Respondent further takes the position that the Emergency Protection Order was vindictive, was designed to prevent him from having contact with his children and to gain a custody advantage with respect to those children, and for no other valid reason. [ 2 ] Furthermore the Respondent alleges that the Claimant was charged with assaulting him, that it is he that requires protection

from the Claimant. [ 3 ] The Claimant at the initial hearing described a very rocky relationship that she had had with the Respondent over the past five years and she alleges that the Respondent had threatened to slit her throat, to stab her mother, to kill her, and told her that she would never see her children again after burying her in the woods where no one could find her. [ 4 ] Not only are the parties very young individuals, one of the children was just born recently, and the other two are approximately 15 months of age. [ 5 ] Also before me is an application by the Respondent for parenting time and guardianship with respect to these children.

On November 2, 2011 the Claimant applied for and obtained an Emergency Ex Parte Order for sole custody of the three children under the Family Law Act , R.S.A. 2003, c. F-4.5 , so the children have been residing with the mother and the Respondent has not seen the children. [ 6 ] The Applicant/Claimant mother was successful in obtaining the Emergency Ex Parte Custody Order again partly on the basis of the alleged threats made against her by the Respondent. However the mother also deposed that when these children were born, these parties were not actually living together.

The mother argues that while the parties were physically in the same residence, they were living lives separate and apart from each other, and that the Respondent was essentially just a “ sperm donor ” . She submits that no access to the children be given at this time until all issues between the parties are decided especially given the children ’ s very young age. [ 7 ] The Respondent responds that these parties lived together within their parent ’ s residence, as a couple, although the Respondent acknowledges that there were periods of separation.

He deposes that he was full participant in the children ’ s lives and that the Claimant acknowledged him as the children ’ s father. He is listed on the birth certificate for the youngest child born in 2011, and he submits that he is the parent and guardian of that youngest child because the parties lived together when the Claimant was pregnant and for the last several months since the child was born.

The Respondent acknowledges that he has not been formally listed as a father or guardian of the twins, born approximately 15 months ago, but submits that since he has been a full and equal caregiver for all the children, the Court should name him as a parent and guardian of the twins as well. [ 8 ] The Respondent seeks an Order that the children be returned to him, or that at a minimum that there should be shared parenting between the parties. [ 9 ] The Respondent deposes that the Claimant abuses police reports and now the Court process to gain advantage of the ongoing custody dispute between them.

The Respondent claims that the Claimant has attempted suicide, has medical issues resulting in her mental instability, and has been diagnosed for postpartum depression. [ 10 ] The Respondent submits that he needs the Courts protection in the form of an Emergency Protection Order, or in the form of a mutual Restraining Order, and that it is the Claimant mother who should only have access on a supervised basis. [ 11 ] Counsel for the Claimant submits that the parenting and guardianship application, and the application for parenting time by the Respondent, should be adjourned indefinitely until he has had a chance to examine the Respondent on his Affidavit.

In the mean time counsel for the Claimant submits that the Claimant is entitled to have a one year Emergency Protection Order confirmed. Conclusion [ 12 ] The oral submissions and argument with respect to this matter consumed most of the morning Chambers time set aside for all counsel and all applications, as well as all of the time for the Emergency Protection review process. The Respondent appeared in afternoon Chambers along with counsel for the Claimant during the period of time scheduled to hear a Family Law Special Chambers application.

It appears that between the morning Chambers and the afternoon Special Application Chambers that the Respondent may

have discharged his counsel. [ 13 ] After further discussion in the afternoon and submissions, I decided that the Court had authority in these circumstances to issue a mutual Emergency Protection Order for a certain period of time. I therefore extend the existing Emergency Protection Order granted November 3, 2011, to December 7, 2011 at which time the application for confirmation of that Emergency Protection Order can again be dealt with.

The terms of the Emergency Protection Order are extended to include the children and other members of the Claimant ’ s family namely the Claimant ’ s mother, her husband, and the Claimant ’ s sister. [ 14 ] The mutual Emergency Protection Order in favour of the Respondent against the Claimant also includes similar terms.

Essentially this application is being adjourned to December 7, 2011 to allow the parties to cross-examine given the various conflicting Affidavits. [ 15 ] With respect to the interim care and custody of the children, I direct that the Claimant mother will continue to have interim care and custody of the children, but that such care and control of the children will be supervised by her mother, the mother ’ s husband, or the Claimant ’ s sister. [ 16 ] As for the Respondent Mr.

Cyr, he will be entitled to interim access to the children from 10:00 a.m. until 7:00 p.m. on Saturday commencing November 12, 2011, and on each Wednesday from 10:00 a.m. to 7:00 p.m. commencing November 17, 2011. Access by Mr. Cyr will be supervised as well at all times and shall take place in the presence of his mother, or his father, or his sister. [ 17 ] Access exchanges shall take place at the Red Deer City Detachment of the Royal Canadian Mounted Police at the times specified, and there will be a police enforcement clause. Heard on the 9 th day of November, 2011.

Dated at the City of Edmonton, Alberta this 16 th day of November, 2011. Donald Lee J.C.Q.B.A. Appearances: James I. MacSween, Q.C. Rowanoake Law Office LLP for the Claimant

Brenda Ffraser Ffraser Law Office for the Respondent