AD v SS, 2011 ABQB 723

Court of Queen ’ s Bench of Alberta Citation: AD v SS, 2011 ABQB 723 Date: 20111122 Docket: 1103 18317 Registry: Edmonton Between: A.D., N.D., A.D. by Their Litigation Representative J.D. Applicants - and - S.S. Respondent Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant Litigation Representative applies ex parte for a Restraining Order enjoining and restricting the Respondent from being within 200 metres of her children, and restraining the Respondent from contacting the Applicant or her children directly or

indirectly. Additionally the Ex Parte Restraining Order specifically seeks to restrain the Respondent from being within 200 metres as well of the school that the children attend, as well as the Respondent ’ s own residence while the children are visiting the father of the children. [ 2 ] In support of her application Litigation Representative deposes that she is the mother of the three children listed in the application, and the partner of the children ’ s father.

She alleges in her Affidavit that the Respondent has been abusive to the children physically and verbally. [ 3 ] She deposes on November 21, 2011 in support of this Restraining Order that she received a call from Children Services advising her that her children were interviewed at their school with respect to concerns about their safety while visiting their father ’ s house. These parties apparently have been co-parenting the children.

She deposes that in June 2011 Children Services closed their file but in the process warned the children ’ s father and the Respondent that any further physical abuse may result in their visits being supervised or terminated, and that any further emotional abuse would have to be dealt with through lawyers. [ 4 ] The mother deposes that there have been numerous incidents since June 2011, and that her children are now very afraid to visit their father when the Respondent is present. [ 5 ] The children allegedly come home and advise the mother that the Respondent pushed one of them downstairs, has shoved another upstairs and pushed her downstairs, has used a key to “ poke ” another child upstairs, has “ tazered ” another child; and has continually called the children jerks, liars, bitches, and bad children. [ 6 ] It is alleged as well that the Respondent has had many fits of rage and the children advised the mother of an October 28, 2011 incident in which there were pieces of metal and glass everywhere that the father had to clean up.

It is also alleged that the Respondent has threatened to leave the children at Ikea and make them walk home, and have been told to find their own way home from school. The children allegedly have expressed these fears to their teachers, and they are afraid and scared that they are going to be hurt. The children are all in elementary school currently. [ 7 ] The mother also produces an IPod recording provided to her by the eldest daughter on November 1, 2011 with respect to alleged events that occurred on October 28, 2011. The mother provides the Court with her transcription of the recording.

As a former Registered Emergency Nurse, the mother deposes that she has never heard “ such a psychotic scream ” from the Respondent. [ 8 ] The mother has also provided the Court handwritten notes from some of the children asking for help and protection. Conclusion [ 9 ] The Restraining Order that is being sought in this matter on an ex parte basis is very broad.

It is proposed by the Applicant mother as litigation representative for the three elementary school age children that the Respondent, who I gather is the new partner of the children ’ s father, is restrained from being within 100 metres of the Applicants anywhere in the Province of Alberta.

Furthermore the Respondent would be specifically restrained from being 200 metres of the children ’ s school, as well as the individual residences of the mother and the father, [with respect to the father ’ s address presumably when the children are visiting their father]. [ 10 ] The allegations are very serious, but there is little in the way of corroborative independent evidence with respect to these serious allegations. [ 11 ] With respect to the transcript of the IPod recording, I insisted on listening to the actual recording itself, which only lasts approximately one minute.

It is true that the screaming that occupies the last half of that recording is quite troubling, but there is no way of telling from the actual recording who is doing the screaming. If anything it appears that the screaming is not emanating from an adult

but rather from a child, although the Applicant mother insists that that is the voice of the Respondent given her own personal knowledge. [ 12 ] As for the Children Services ’ file, I specifically directed and allowed the Applicant to provide the Court with her entire file with Children Services. The Applicant has now done so, and the only email from Children Services that is relevant to the Restraining Order is that the father and the Respondent were advised in June 2011 that “ any further inappropriate physical contact with the children, could result in visits being supervised or taken away ” .

There was actually no finding that any inappropriate physical contact had occurred with the children, and whatever did occur appears to be something involving the Respondent grabbing one of the children ’ s knees.

The June 22, 2011 email also states that there was nothing that Children Services could do about the situation generally between these parties. [ 13 ] The ultimate incident according to the Applicant that occurred between November 9 and 12, 2011 that led to this request for a Restraining Order was the allegation that the Respondent raised her fist to one of the daughters and cornered her so that she could not get away, with the result that all three of the children were scared and intimidated. [ 14 ] There is a Parenting Order currently existing in this matter, and the parents of these children have some sort of shared parenting/co-parenting arrangement.

I am very loath to grant an ex parte Order in the midst of what appears to be an ongoing dispute between the parties with respect to their children, without at least hearing from the father and the Respondent. [ 15 ] After considering all of the presented material, and the additional material provided by the Applicant in this matter, I do not see the emergent nature or any specific need to act precipitously in this matter. The incidents that have occurred have occurred over a number of months, and there has been some delay in bringing these complaints forward.

While the incidents may be very serious, and require some form Restraining Order, I conclude that that should be done only on notice by the Applicant to the Respondent and to the father of the children. [ 16 ] Accordingly the application for an Ex Parte Restraining Order is not granted, but the Applicant mother and litigation representative for the children can proceed on notice to the father and to the Respondent. Heard on the 21 st day of November, 2011. Dated at the City of Edmonton, Alberta this 22 nd day of November, 2011. Donald Lee J.C.Q.B.A. Appearances:

J.D. Appeared for A.D., N.D. and A.D.