S.F. v. M.H.L., 2012 ABQB 279

Court of Queen ’ s Bench of Alberta Citation: S.F. v. M.H.L., 2012 ABQB 279 Date: 20120528 Docket: FL01 12271 Registry: Calgary Between: S. F. Applicant - and - M. H. L. Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Background [ 1 ] On April 26, 2012 I gave oral reasons and advised the parties written reasons would follow.

[ 2 ] The issue to be resolved by me is whether a Restraining Order between a divorced couple granted initially on May 17, 2011, should continue for up to another six months. [ 3 ] The application for a Restraining Order without notice was first made by the Applicant, S. F. who claimed the Respondent used physical violence during their 10 year marriage; that many times she ended up in the hospital as a result of physical injuries and that the Respondent hit her and the kids. Finally, she claimed his violence affected their children severely and they are afraid of their father.

The names of the two children are I.L., born in 2004 and J.L., born in 2005. [ 4 ] For his part, the Respondent claims that he divorced the Applicant following a difficult trip to Saudi Arabia and Egypt, and once the Egyptian divorce was done, he simply tried to convince her to come home to Canada with the kids. He claims that marital acrimony combined with her avoiding the return trip home prevented him from not only talking to the children but also the necessity for him to obtain a Court Order overseas for access to the children.

There he also claims that she had made the kids afraid of him and that once he gave her the passports, (to allow her to travel home) he did not know that she and the kids returned to Canada except through a third party. That’s when things started to go wrong. Court Orders [ 5 ] On May 17, 2011, Justice Bast issued the initial Ex-Parte Restraining Order against the Respondent and that Order was continued temporarily by Justice Bensler. Then, on June 7 th , 2011, Justice Strekaf ordered that the Restraining Order granted May 17 th be confirmed until November 1, 2011.

Additionally, she adjourned the matter to a two day viva voce hearing, no doubt to get further and better particulars from both parties as to the background facts supporting the Restraining Order. Finally, Justice Strekaf ordered that, absent another court of competent jurisdiction order, the Respondent would have no access to the two children born of the marriage union. Following some adjournments, I conducted the viva voce hearing April 23 - 26, 2012. Viva Voce Hearing [ 6 ] I have heard evidence from both sides and their several supporting witnesses.

It is clear and obvious that this marriage has been accompanied by mutual dissatisfaction and several spousal arguments. On behalf of the Applicant, she testified in general that the Respondent hit or pushed or was otherwise abusive to the children and her. After her previously mentioned return to Canada, she wanted nothing to do with her ex-husband. [ 7 ] Several witnesses testified for the Applicant. This included T. Gordey, Executive Director of a Protection Centre where the Applicant lived, and J. Wahad, the Applicant’s neighbour for 2 years.

These witnesses testified to the difficult marriage of the Applicant with the Respondent. Additionally, Ms. Gordey testified she saw the Respondent at her facility ostensibly looking for or waiting for the Applicant. Significantly, Ms. Wahad also testified that she saw the Respondent spit at the Applicant after a prior court proceeding. She also saw the Respondent approach the Applicant during their important gathering (called EID) which, if true, would have been a breach of the extant Order. [ 8 ] The Respondent testified and so did his two children from a prior marriage.

The Respondent flat-out denied the allegations and his two children and his friend generally stated he was a good dad and a good man. The children testified that their father was upset at the Applicant’s reluctance for whatever reason, to come to Canada and return with the couples’ two small children. Analysis and Conclusion [ 9 ] I have considered the evidence given by both sides and believe they both told the truth at times, and exaggerated the truth at other times. I acknowledge that much of the evidence involved anger on both sides that came from a marriage that should not have happened.

This marriage was doomed to fail, and it became complicated during the parties’ trip to Egypt. Much was said about the passports that the Respondent took home from Egypt, and then returned to his former wife overseas so that she could come back to Canada which she did without notice to him. He was very frustrated that she would not return when he did, and that she initially hid the passports.

[ 10 ] During the hearing, I tried to focus the parties’ attention, and especially the Respondent’s attention, to the Restraining Order issued and the grounds for that Order. Those issues included prohibitions of harassing, molesting, watching, following, or otherwise contacting the Applicant directly or indirectly, personally or by agent. Throughout the evidentiary hearing, I focussed my attention on those issues because they are important in deciding whether the Restraining Order be vacated or continued. [ 11 ] In my mind, I looked for the Applicant’s concern for safety and the legitimate basis of that fear.

I needed to decide if she had a genuine fear of ongoing acts or harassment by the Respondent. I needed to see some indicia of the continuing concern or fear. In other words, I was looking for compelling facts that connected her personal fears of harm or threats of violence through corroboration or otherwise, with the Respondent’s conduct. [ 12 ] For the Respondent, the same principle applies i.e., genuine evidence that he did not harass or harm the Applicant.

Yet, in looking at his evidence, I find he was more concerned about shifting the burden to the Applicant to disprove his conduct, than he was convincing to the Court in his own evidence, or through witnesses, that he did not do it - that he didn’t threaten, harass, hit, watch or follow the Applicant.

From his emotional perspective, and understanding his clear frustration with this marriage, I can appreciate how the Respondent spent so much time giving evidence of his failed marriage, including dealing with her difficult pregnancy, and the difficulties these parties had in spending any time under the same roof. [ 13 ] I heard from the Respondent and from his children of another marriage that the Applicant was in fact a good step-mother. I believe she was. I also heard from the Respondent’s step-children that he was a good father and probably spoiled his children as opposed to disciplined them.

I believe this is true also. Also, and this point favours the Respondent, I believe that the extent of the physical violence or abuse on the Applicant, as she stated in her testimony, was not as extensive as she said it was. On some points, e.g. the hospital visits, her evidence on bruising changed. [ 14 ] I believe the evidence of the Applicant is understandably linked to her huge distaste for the Respondent, including his lack of assistance to her not only during her pregnancy but also to help her with normal domestic duties.

It didn’t help matters that the Respondent brought his kids from another marriage into their home for the Applicant to care for. But, without anything more, their marital disharmony and hatred for each other is not a reason to continue a Restraining Order especially beyond 12 months. [ 15 ] But there is more. First, I am concerned about the incident in the taxicab, in other words, that the Respondent was checking up on the Applicant at the Violence Protection Centre.

Both sides have different positions on whether or not the Respondent attended at the protective residence of the Applicant and essentially “waited for her”. I am not perfectly convinced that the Respondent did this, but the fact that the Resident Manager stated with 99% certainty that she saw him, and talked to him, combined with the fact that the Respondent testified that although he does not drive cab today, he was a cab driver (up north) five years ago, suggests to me that more likely than not, this incident did happen.

Then, the Respondent had a friend go to the same building (for the same purpose). [ 16 ] Second, I am concerned about the incident at the important EID ceremony, where I find as a fact that the Respondent and his son did encounter the Applicant, during the period when the Restraining Order was in effect. I adopt the evidence of the Respondent’s son, and find that: (

a) the Respondent was fairly close to the Applicant, and (

b) the Respondent did not leave when he noticed the Applicant. Though the Restraining Order was against him, he believed it was up to the Applicant and her party to leave. In other words, the Restraining Order was in place, the Respondent knew it, and whether or not their EID encounter was coincidental, he just stood his ground. [ 17 ] Finally, and this is both the most significant and disturbing point. I find as a fact that the Respondent spit at the Applicant. This happened following one of the previous court proceedings in our Calgary Court Centre - at the conclusion of proceedings.

For some malicious reason, the Respondent followed the Applicant and while still in the courthouse, he spit at, or towards, or perhaps on , the Applicant. [1] This act was not only admitted by the Respondent, (though he suggested he spit to her side) the act was also acknowledged by a witness walking close to the Respondent who believed as I do, he spit at her, his ex-wife. Let me be clear: I cannot understand why someone would commit such a deplorable and vile act. Additionally, and worse yet for the Respondent, I cannot understand why anyone would do this to his ex-wife and mother of his children.

To say this was at least harassment, is an understatement. [ 18 ] In the result, I have decided to continue the Restraining Order but the question is: for how long? Counsel for the Applicant referred me to three cases suggesting such authority:

L.H.G. v. C.B.G. , 1998 ABQB 530 ; B.L.S.S. v. T.M.S. , 2001 ABQB 924 ; and M.C.K. v. P.S. , 2005 ABQB 934 . All of these cases are Alberta Queen’s Bench decisions, and while Restraining Order extensions were given, the facts of those cases were arguably more serious. Further, the Restraining Order now in place against the Applicant has been extended already for eleven months approaching its normal common law duration in these circumstances. [ 19 ] On the other hand, is there a continuing need for the Restraining Order protection?

Keeping in mind that the Respondent had a Restraining Order in a previous relationship (albeit for a short time, apparently) I remain concerned about the Respondent’s watching or following the Applicant (or having someone else do it). I am also concerned that the Respondent, who encountered the Applicant at EID, waited for her to leave as opposed to vice-versa ; whether it was for one minute or several, and I find it was several.

Regardless, what is important is who moved away first. (It was her, not him.) [ 20 ] Finally, as I said before, the abhorrent act of spitting at, towards, or perhaps on, his ex-wife is not only violates civilized standard of dignity; that act violated almost all of the prohibitions placed in clause 2 of the May 17, 2011 Restraining Order. The fact that I think it was premeditated and not at all accidental doesn’t assist the Respondent’s case. Result [ 21 ] Accordingly, and for the reasons given above, the Restraining Order now in place will continue until August 1, 2012, at which time it expires.

Additionally, para. three of my Order pronounced on October 31, 2011 is vacated which in result means that para. one of the original Order granted on May 17, 2011 by Justice Bast, is restored in its entirety. Future Matters [ 22 ] Finally, on a matter of procedure, I note the parties’ related family law file was recently transferred to this Court. While I was seized on the Restraining Order matter, which has now concluded, any future family law applications can be filed and proceed in the ordinary course, before any Justice. Costs [ 23 ] At the conclusion of this matter, the Applicant sought costs.

I directed that the Applicant would have one week to prepare her submissions, and the Respondent would have one week to reply. She did; he did not. [ 24 ] Ms. Farrag argues that she was the successful party as the Restraining Order was extended for an additional three months. Therefore, she asserts, she is entitled to her costs. Ms.

Farrag also argues that there has been misconduct on the part of M.H.L. and that costs can be imposed as a punitive sanction for such misconduct. [ 25 ] Though ordinarily the successful party is awarded costs, it is firmly established in our law that costs are in the discretion of the court. In this case, Ms. Farrag asked that the Restraining Order be extended for a further six months; I have extended it for three. Therefore, Ms. Farrag has had partial success.

[ 26 ] Ms. Farrag’s counsel indicated that the “total cost” for dealing with the Restraining Order was $3,816.12, comprised of fees in the amount of $3,379.00, GST of $168.95 and disbursements of $268.17. She also advised that costs for the three and one-half day hearing were $1,935.00 in fees plus $96.75 GST. [ 27 ] Given Ms. Farrag’s partial success in this matter, I am satisfied that an appropriate award of costs is $2,500.00.

With respect to the argument about misconduct on the part of M.H.L., while I find some of M.H.L.’s conduct problematic, I do not believe it rose to the level where the imposition of further costs would be warranted and I decline to increase the costs award on that basis. Heard on the 31 st day of October, 2011, the 12 th day of March, 2012 and the 23 rd day of April, 2012 to the 26 th day of April, 2012. Dated at the City of Calgary, Alberta this 28 th day of May, 2012. W. A. Tilleman J.C.Q.B.A. Appearances: Laurie Hnatiuk for the Applicant M. H.

L. self-represented [1] Whether he hit her with the spit is not the point; assault, which this probably was, turns on intent .