Jensen v. Kootenay, 2011 ABQB 784

Court of Queen ’ s Bench of Alberta Citation: Jensen v. Kootenay, 2011 ABQB 784 Date: 20111209 Docket: FL03 31378 Registry: Edmonton Between: Jaylin Jensen, a minor, represented by Allison Jensen, Mother Applicant - and - Camille Marvin Kootenay Respondent Corrected judgment: A corrigendum was issued on December 12, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Unfortunately, two streams of process have taken place independently of one another on this file. In the result, the respondent father may have been unfairly stigmatized by a family violence order and the best interests of his 15 year old daughter may

not have been adequately addressed. In the result, this matter is adjourned to the December 19, 2011 at 9:30 a.m.; notice of the new hearing date will immediately be given to all parties. 1. Background [ 2 ] On December 1, 2011 this matter was before the court at 9:30 a.m. on the EPO confirmation list. A lawyer representing the respondent was present.

A lawyer who believed that she was representing the applicant was present. [ 3 ] The lawyer from the Family Law Office who believed that she was representing the applicant properly informed the court that she had no current instructions from her client, but that she had not received instructions countermanding the instructions she had taken from the applicant on October 20, 2011 to proceed to obtain an emergency protection order. [ 4 ] On October 20, 2011, the Family Law Office had appeared with Ms. Jensen to obtain an emergency protection order in relation to Mr. Kootenay. The emergency was said to be that Mr.

Kootenay was scheduled to return to Edmonton on October 20, 2011, and that he might give his daughter money which she might use to buy drugs. The order was granted and the matter was adjourned to this court to be heard on October 31, 2011. [ 5 ] I pause to observe that the Protection Against Family Violence Act requires that any order given without notice to a respondent must be brought back to court within 9 working days.

Obviously, the Legislature intended to underscore both that an order without notice is only appropriate in urgent situations and that an order under this legislation may have a very negative effect on a respondent and should not be outstanding any longer than necessary. [ 6 ] On October 31, 2011, a lawyer from the Family Law Office appeared in this court and requested an adjournment of the confirmation hearing to December 1, 2011. Although the court-generated order of October 31, 2011 does not explicitly say so, it appears from the clerk’s notes of that hearing that there had not been service on Mr.

Kootenay of the Provincial Court order and that Mr. Kootenay would have no notice of his right to appear on October 31. In any event, on October 31, 2011, this court ordered that the ex parte order of the Provincial Court should continue in force until December 1, 2011 when a confirmation hearing would be held. [ 7 ] On December 1, 2011, a lawyer from the Family Law Office appeared and, properly from the perspective of professional responsibility, indicated that she did not have current instructions from her client, not having been able to get in touch with her client.

She also stated that she had not received any instructions countermanding the instructions which were at least implicit in the October 20, 2011 application to continue the proceedings; the lawyer from the Family Law Office was therefore asking the court to confirm the temporary order of the Provincial Court. That lawyer stated that clients of the Family Law Office are presumed to understand that they are to keep in touch with the office, although, of course, they are not required to appear in court unless a viva voce hearing is ordered, at which time they will have to obtain a new lawyer.

Whether or not they are represented by a lawyer, individuals who obtain ex parte EPO orders are, of course, able to change their minds perhaps in response to changing circumstances, and decide not to request confirmation of the ex parte order. [ 8 ] In arguing in support of confirmation, the Family Law Office indicated that conduct of Mr. Kootenay’s which enabled his daughter to buy drugs was conduct which came within the definition of “family violence” under the Protection Against Family Violence Act . [ 9 ] Through his lawyer, Mr.

Kootenay opposed the confirmation of the order, stating that the facts put before the court by the applicant did not constitute violence within the meaning of the authorizing statute. [ 10 ] This court was concerned about whether the statutory framework did indeed apply in the circumstances here; the court therefore extended the ex parte order until it decided the issue of whether the father’s alleged conduct indeed met the statutory definition of family violence and took the matter under reserve.

[ 11 ] Today, it has come to light that, on November 17, 2011, Ms. Jensen appeared in court on her own, with the assistance of duty counsel, not counsel from the Family Law Office. On November 17, 2011, there was, of course no obligation for Mr. Kootenay to appear since the matter had been adjourned to December 1. The court generated order prepared by the court officials on that day states in the

preamble: And upon the respondent, Camille Marvin Kootenay, having failed to appear, and not being properly served, [ 12 ] Despite the lack of notice, this court ordered that the “Emergency Protection Order granted October 11, 2011" should remain in force until December 9, 2011 and ordered that the hearing of the application, unnamed but presumably to confirm the October 11, 2011 order, was adjourned to December 9, 2011 at 9:30 a.m. So far as I am aware, there is no EPO of October 11, 2011, and the reference to an order of that date was just a typographical error. [ 13 ] Ms.

Jensen appeared in chambers this morning, along with duty counsel, not a lawyer from the Family Law Office. Ms. Jensen apparently informed the court that she became aware in November that she would be travelling outside the country on December 1 and therefore attempted to bring the matter forward to obtain an adjournment. Unfortunately, duty counsel on that day was not made aware of the previous proceedings. I also understand that Ms. Jensen has today filed a new affidavit in which she apparently raises new grounds for the issuance of an EPO order. Obviously, Ms.

Jensen’s current affidavit cannot be considered by the court to day. [ 14 ] In all the circumstances, a hearing to determine whether the EPO granted in this matter by the Provincial Court on October 20, 2011 should be confirmed is adjourned to December 19, 2011 at 9:30 a.m. The existing Provincial Court Order is extended to that date and time. Heard on the 1 st day of December, 2011. Dated at the City of Edmonton, Alberta this 9 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Christina E. Riddoch

Family Law Office For Ms. Jensen James E.B. Johnston, McPike Johnston for Mr. Kootenay Louise Syme _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.B. Veit _______________________________________________________ Please note that paragraph [14] has been corrected to read as follows: [14] In all the circumstances, a hearing to determine whether the EPO granted in this matter by the Provincial Court on October 20, 2011 should be confirmed is adjourned to December 19, 2011 at 9:30 a.m. The existing Provincial Court Order is extended to that date and time.