R.P. v. R.V., 2012 ABQB 353

Court of Queen ’ s Bench of Alberta Citation: R.P. v. R.V., 2012 ABQB 353 Date:20120525 Docket: FL01 08934 Registry: Calgary Between: R.P. Applicant (Defendant) - and - R.V. Respondent (Plaintiff) Editorial Notice: On behalf of the Government of Alberta personal data identifiers and identifying information have been removed from this unofficial electronic version of the judgment. Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act , s. 100 . _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes

_______________________________________________________ Introduction [ 1 ] R. P. (Ms. P.), the Applicant, sought a Restraining Order Without Notice in a Family Law Situation on behalf of M.V. (M.), her son, against his father, R.V. (Mr. V.). An interim restraining order was granted on March 23, 2011 and was extended on a number of subsequent court dates.

On May 11, a one day viva voce hearing was set for June 3, 2011 for the contested application for a permanent restraining order. [ 2 ] Prior to the hearing date, counsel was appointed by the Court to represent the interests of the child M.. [ 3 ] On June 3, the hearing commenced and continued on June 24, July 12 and October 27 with the interim restraining order being extended on each date. [ 4 ] I find the applicant Ms. P. has established the necessity of a restraining order on behalf of M.. Background [ 5 ] Ms. P. and Mr. V. are the parents of M., a 13 year old boy born in 1998.

Some background respecting the family relationship is necessary. [ 6 ] Ms. P., who was born and raised in the Philippines, met Mr. V. in 1990. Mr. V., a professional engineer who is now retired, was educated in England before coming to Canada. Mr. V., who is 66 years old, appears to be much older than Ms. P.. [ 7 ] Mr. V. is a much physically larger individual than Ms. P.. Indeed Mr. V. would be a physically imposing individual to any person of Ms. P’s height and build. [ 8 ] The parties eventually lived together in an adult interdependent relationship but separated July 30, 2002 when Ms.

P. and M. left the family home in the early morning hours while Mr. V. slept. Ms. P. had received counselling from the Sheriff King Centre prior to her deciding to leave. Ms. P. testified that from approximately 1994 and on, Mr. V. was controlling of her, verbally abusive and occasionally physically abusive. Mr. V. in his evidence acknowledged “yelling and scolding” Ms. P. during their relationship but denied physically assaulting Ms. P.. [ 9 ] After Ms. P. left the home, an action was commenced in this Court respecting parenting of M..

Between 2002 - 2003 the court proceedings appear to have been acrimonious but, in June, 2003 an agreement was reached between the parties and confirmed in May 2004, that Ms. P. and Mr. V. would share parenting of M.. As time progressed, M. was parented for a number of months at a time by one of his parents, and then the other. This was the state of affairs in 2010. [ 10 ] That year, Ms. P. was in the Philippines at the beginning of the year and M. was parented by his father from January, 2010 to June 21, 2010. On June 21, M. went to live with his mother at her home after she returned to Canada.

M. remained at his mother’s home until January 11, 2011 when he returned to his father’s home for approximately a month before returning again to his mother’s home on

February 17, 2011. [11] During the time period June 21, 2010 to January, 2011 M. is alleged to have told his mother, that Mr. V. caned him andthreatened to cane him. These same allegations and others were made by M. to his mother and his mother’s husband after February 17,2011. All the allegations give rise to this application. Restraining Orders at Common Law [12] In the case at bar Ms. P. seeks a permanent restraining order against Mr. V.. By way of clarity, when I use the term“permanent” I am referring to an order granted after the parties’ legal rights have been fully determined by a court.

In this Court, it is notuncommon to see permanent restraining orders granted for a one year time period. [13] As Ms. P. seeks a common law restraining order rather than a Queen’s Bench protection order pursuant to the ProtectionAgainst Family Violence Act, R.S.A. 2000, c. P-27, s. 4 (PAFVA), I will first set out the Court’s authority to grant the relief requested,and then discuss the test an applicant must satisfy before the Court will grant a restraining order. Source of Authority [14] A restraining order in the family law context is a form of injunction. See Robert J.

Sharpe, Injunctions and SpecificPerformance, looseleaf edition, 2012, (Toronto, Ontario: Canada Law Book) at 5-26. [15] I.C.F.

Spry in Equitable Remedies, 6th ed. (Agincourt, Ontario: Carswell, 2001) at 322 writes: “An injunction is an order,historically of an equitable nature, restraining the person to whom it is directed from performing a specified act...” Sharpe observes at 1-1that “...the heart of the injunctive process is the prohibition, permanently or temporarily, of the wrongful conduct or conduct whichwould interfere with the rights of another.” [16] The common law jurisdiction to grant a restraining order flows from the inherent jurisdiction of provincial superior courts tohear any matter properly coming before it, in combination with the general power of those courts to grant injunctive relief as an equitableremedy. [17] In R. v.

Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 at para. 24, the Supreme Court of Canada quoted with approval I. H. Jacob,"The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, in describing inherent jurisdiction as: "a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so" ...

These powers arederived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" … to enable "the judiciary touphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".[citations omitted] [18] In Canadian Pacific Ltd. v.

Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation, (SCC), [1996] 2 S.C.R. 495 at 499, the Supreme Court held that the authority to grant an injunction is based upon thisinherent jurisdiction: The governing principle on this issue is … the courts retain a residual discretionary power to grant interlocutory relief such asinjunctions, a power which flows from the inherent jurisdiction of the court over interlocutory matters: St. Anne Nackawic Pulp & PaperCo. v.

Canadian Paper Workers Union, Local 219, [ (SCC), 1986] 1 S.C.R. 704, a p. 727. [19] While the above quotation expressly refers to interlocutory relief, the scope of inherent jurisdiction is broader than that. The

discretionary power to grant all manner of injunctions is an equitable remedy that dates back to English law: Spry at 323 and 328-329. [20] This Court’s inherent jurisdiction and authority to grant equitable relief has been codified in the Alberta Judicature Act,R.S.A. 2000, c. J-2, ss. 8 and 13(2). See Goebel v. Edmonton (City), 2004 ABCA 86, 346 A.R. 275 at para. 9; Alberta Soccer Assn. v.Charpentier, 2011 ABQB 3 at para. 9; Bank of Montreal v. Valerio, 2009 ABQB 578, 480 A.R. 393 at para. 30; Sweiss v. Alberta HealthServices, 2009 ABQB 691, 483 A.R. 340 at para. 33; Yaghi v.

WMS Gaming Inc., 2003 ABQB 680 at para. 21, [2004] 2 W.W.R. 657;Switzer v. Gruenewald (1997), (AB KB), 207 A.R. 391 at para. 8 (Q.B.). See also Caron, supra, at para. 34.Notably, s. 13(2) specifically refers to injunctive powers in language that virtually repeats the equivalent provision in England’s originalSupreme Court of Judicature Act, 1873 (UK), 36 & 37 Vict., c. 66, s. 25(8). The Test [21] The next question is what test must an applicant satisfy before a court should exercise its discretion to grant a restrainingorder?

The general principle derived from ss. 8 and 13(2) of the Judicature Act is whether a court, after having considered all thecircumstances, is satisfied that granting an injunction will do justice between the parties. However, little else has been written on theissue. [22] Within the ambit of doing justice between the parties, different considerations underlie a court’s exercise of equitablediscretion according to the nature of the remedy sought. For example, in the case of interlocutory stay or an interim injunctionapplication, the tripartite test set out in RJR McDonald v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 at334, will ordinarily apply. However, where as here an applicant seeks a permanent injunction, a court must first determine the entireextent of the parties’ legal rights, which in turn informs the court’s decision on whether to grant an equitable remedy. [23] In Qureshi v. Gooch, 2005 BCSC 1584 at paras. 28-29, the British Columbia Supreme Court set out a series of factorsrelevant to issuing a permanent injunction in the context of breach of contract.

While the case at bar implicates a different legal right, i.e.the Applicant’s freedom to remain unfettered by harassing, intimidating, threatening, or violent conduct, I accept the general principles inQureshi: 28 The issuance of a permanent injunction is a discretionary order. In determining whether it is appropriate to grant a permanentinjunction the court looks at the nature of the rights that the injunction is sought to protect and the surrounding circumstances, andattempts to balance the equities between the parties: Cadbury Schweppes Inc. v.

FBI Foods Ltd., (SCC), [1999] 1S.C.R. 142 (S.C.C.). 29 In determining whether it is appropriate to order a permanent injunction courts have considered a number of factors including: 1. whether an enforceable right and a threat/violation of that right exists: Delta Hotels Ltd. v. Okabe Canada Investments Co.(1991), (AB KB), 81 Alta. L.R. (2d) 338 (Alta. Q.B.), var'd on other grounds (1992), 1992 ABCA 176 , 3Alta. L.R. (3d) 85 (Alta. C.A.); 2. whether the applicant will suffer demonstrable harm: Steeves Dairy Ltd. v. Twin City Co-operative Milk Producers Assn. (1925), (BC SC), [1926] 1 W.W.R. 25 (B.C.

S.C.); 3. the hardship that would be caused to the defendant if a permanent injunction was granted compared to the hardship that would becaused to a plaintiff if he/she had to resort only to an award of damages: Cadbury; 4. the conduct of the parties; and 5. the effectiveness of an injunction.

[ 24 ] In my opinion, within the context of a no-contact restraining order these factors lead to a more specific standard: has the applicant established that the respondent poses a legitimate risk of harm to the applicant, a person under the applicant’s care or the applicant’s property as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour? [ 25 ] This “test” is informed by legislative schemes across the country that confer statutory authority on provincial superior courts to issue no-contact restraining orders, and case law that interprets this legislation. [ 26 ] For example, the Protection Against Family Violence Act , confers wide authority on the Court of Queen’s Bench to enjoin a person from conducting themself in any way that interferes with the applicant’s right to live free from the respondent’s harassing, intimidating, or violent behaviour.

The statutory test is for the Court to determine whether “the claimant has been the subject of family violence”. At s. 1(1)(

e) the definition of “family violence” is defined as: (e) “Family Violence” includes (

i) any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member, (ii) any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member, (iii) forced confinement, (iv) sexual abuse, and (

v) stalking, ... [ 27 ] Similar legislation, conferring similar authority to protect victims of domestic violence, exists in other provincial jurisdictions. See the Victims of Domestic Violence Act , S.S. 1994, c. V-6.02, ss. 2(

d) and 7 ; Domestic Violence and Stalking Act , S.M. 1998, c. 41, C.C.S.M., c. D93, ss. 2 and 12(1) ; and Victims of Family Violence Act , R.S.P.E.I. 1988, c. V-3.2, ss. 2, 6 and 7 . [ 28 ] In Ontario, statutory authority for granting restraining orders is found in the Family Law Act , R.S.O. 1990, c. F. 3, s. 46(1) and the Children's Law Reform Act , R.S.O. 1990, c. C.12, s. 35(1). In Fuda v.

Fuda , 2011 ONSC 154 at paras. 31-32 , the Ontario Superior Court of Justice interpreted the statutory test for issuing restraining orders under both enactments: 31 The test for whether a restraining order should be granted is, under both s. 46(1) of The Family Law Act and s. 35(1) of The Children's Law Reform Act is whether the moving party "has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody." This test was considered in Khara v. McManus , 2007 CarswellOnt 3159 (Ont. C.J.) which was a trial of an application for a restraining order. Justice P.W.

Dunn stated, at para. 33 as follows: When a court grants a restraining order in an applicant's favour, the respondent is restrained from molesting, harassing or annoying the applicant. It is not necessary for a respondent to have actually committed

an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an

overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words.

A court must be able to connect or associate a respondent's actions or words with an applicant's fears. 32 In other words, where an Applicant has a "legitimate fear" for his or her safety, even where that is somewhat subjective, a restraining order should go where there are compelling facts leading to that fear. [ 29 ] I accept this

interpretation and adopt it within the context of no-contact restraining orders issued under the common law. However, I emphasize the applicant’s fear, while subjectively held, must also be objectively reasonable. This requirement imports a necessary check and balance into the overall assessment in order to curtail abuse of the Court’s equitable powers and prevent ill- intentioned applicants from pursuing ulterior motives. [ 30 ] There is both judicial and statutory support for incorporating this objective element.

In Fuda , the Ontario Supreme Court of Justice referred with approval to the trial judgment in Khara where Justice Dunn implied the objective element when he wrote “[the applicant’s fear need not] be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant”. [ 31 ] Moreover, in Alberta, in Andres v.

Andres , 2009 ABQB 26 , 467 A.R. 120 at para. 40 , this Court rejected an application for a Queen’s Bench Protection Order pursuant to s. 4 of the PAFVA precisely because the applicant’s fears were not objectively reasonable.

That decision gave effect to the requirement for reasonableness that is expressly written into the definition of “family violence”, pursuant to PAFVA , s. 1(1)(e)(ii) which includes: any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member, [emphasis added] [ 32 ] The final point to note is the test to grant a restraining order under the common law is broader in reach than the enactments referred to above. Those statutory laws generally target violence amongst persons within familial relations.

In contrast, the common law casts a wider net to protect any person or their property suffering from, or at risk of, harassing, intimidating, molesting, threatening or violent behaviour. Where, for example, a victim suffers violence in circumstances where the victim is the boyfriend or girlfriend of the aggressor, the victim is not able to seek protection under the PAFVA on account of the familial scope of Alberta’s Act. This is exactly the type of circumstance where the broad reach of the common law can, and does, step in with a form of remedy available to the victim. [ 33 ] In

summary, subject to the wide discretion of the Court to grant equitable remedies based on all the circumstances, the general rule this Court should follow before granting a restraining order under the common law is whether the applicant has sufficiently demonstrated a reasonably held and legitimate fear for his or her safety, the safety of any other person under his or her care or the safety of his or her property as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour.

If so, the Court should grant the injunctive relief barring any other circumstances that might militate against doing so, such as facts that implicate one or more other equitable considerations, such as clean hands, excessive hardship, misrepresentation, laches, etc. The Allegations [ 34 ] Ms. P. testified M. told her about Mr. V. caning M. and threatening to cane M.. In particular, Ms. P. testified: Q When you came back from the Philippines when? A Yes, in June 21 st , 2010, he started to open up some of his fears about how his father treat – was treating him. And I ask him what was that.

And he said, I don’t – I – I’m afraid to go back to my dad because he was caning me. And I said, Caning you for what reason? And he says, Because he would give me difficult questions apart from my homework, and if I don’t answer the difficult question, he would cane me. But at the time he didn’t tell me the details how he was caning him, but then he expressed that he told – that [Mr. V.] told him he will cane him, scrape to the bone when – to discipline him, or when he leaves the – the keys of the house or when he doesn’t study.

[ 35 ] Ms. P. raised the issue with Mr. V. in an email she sent to him dated June 30, 2010. Her email reads as follows: Hi [Mr. V.], Just want to know when exactly do you plan to be back. I got his report card. He got an award on the 1 st term and has good grades. But dropped his grades on 2 nd and 3 rd . Most of it were some assignments or works had to be done through internet, which you don’t have at home. It is very important now to students to have access in the internet to do their work. You should understand that this is now a new generation.

Going to the library on occasional basis does not help M. much to accomplish his works. You have to understand the flow of teaching these days, otherwise he will be out of place and be left behind in school assignments. DO NOT YELL OR GET MAD OR SPANK OR CANE HIM! It won’t help the morale of your child. You will plant a nervous breakdown on his studies. You can’t always dictate how you want M. to study. He needs some balance to make him to have healthy mind. He is trying his best to study with you. He is already a big boy to be canned!!! He is very very afraid of this !!!

I hate this threat you put to his head that you will cane him scrape to his bone!!! How does that help to motivate your son to study!!! [ 36 ] On July 7, 2010 Mr. V. replied: Terrible e-mail Not true. He did very well in Science. I take him to the library almost everyday and he goes on the internet all the time. Unfortunately he may be playing the games. I regularly ask him if he has any assignments he says no. You have been talking to that stupid [K.G.] [sic] Thank god she is no longer his teacher. Please stop this fighting you are making M. miserable.

I am sending him a copy of everything to him. [ 37 ] In order to put Mr. V.’s response in context, it is necessary to include an email chain between the parties approximately three months earlier. The email chain began with Ms. P. receiving an email from K.G., M.’s teacher, and the same K.G. referred to above. The email dated March 25, 2010 read: [Ms.

P.] – it is SO unfortunate that M. has to be without you - he truly misses you - I cannot believe that you are now thinking of coming home in June or July - that will be almost a year since you left - I feel so badly for him - it is too bad that your work is not here in Calgary with him - I understand the job situation there is unstable and I sure you want to be here with your son, as well. M. is not on holidays - he is in school - he will go on Spring holidays starting this Friday the 26 th until the 7 th of April.

At school, he is O.K. - I think that is an unhappy lad - he does not seem to do too much outside of school - he has not computer at home to access e mail, complete work at home or connect to our school D2L homework sites. I only wish that he would gain some friendships at school, but going home for lunch each day, does not allow him to be with his classmates for social or fun times. I have not met your former husband, he has not come into the school at all. I did ask M. to talk to his dad about a new pair of shoes, as the ones he was wearing were falling apart.

He did a new pair, exactly like the other ones - he likes them. He also told me that his dad cut his hair, he does not like it much, it is growing our now. Hopefully you can return to Canada sooner than you think and spend some much needed quality time with M. Take care, [ 38 ] Ms. P. forwarded the email to Mr. V. and said: Hi [Mr. V.] I’m just forwarding you this message from M.’s teacher. [ 39 ] Mr. V. responded as follows on March 29, 2010:

M. is very happy, I spend a lot of time with him, we are very close. Don’t listen to that stupid idiot [K.G.]. She is Jewish and wants to stir the shit and make us fight she probably gets commission from Jewish family lawyer for client referrals. I am very suspicious of her intentions because it is highly irregular for a school teacher to gets involved in a student’s family affairs. [K.G.] has done very little for M.’s ability to read and comprehend.

Frankly I am not surprised because in her e-mail she demonstrates poor command of the English language, particularly for a teacher designated to teach English to her students. M. is excelling in Maths and is above average in Science. While I was teaching him science, I observed that he had difficulty in reading and comprehension; therefore I am now concentrating in teaching him to read and write. He has been improving, but this should have been [K.G.]’s job, instead she engages in a student’s private home life.

I did not approve of her field trip to see a puppet show about “the tooth fairy” organized by [K.G.] for $15. M. is matured and does not even believe in Santa Claus. I treat him with respect and encourage him to make his own decisions regarding his hairstyle and the shoes, which he wishes to wear. He has 6 pairs of shoes and I will not interfere in his choice of shoes or clothing he wishes to wear. [ 40 ] After Mr. V.’s July 7 response to Ms. P., M.’s report of caning and threats of caning were not discussed again between his parents. [ 41 ] At the end of January, M.J.W.O. [Mr. O.], the husband of Ms.

P. returned to Calgary from the Philippines. In mid-February, M. returned to Ms. P.’s home because Mr. V. had to travel to B.C. for a court case there. [ 42 ] M. spoke again to his mother on his return to her home about the caning, threats of caning, as well as told her about other conduct of his father’s. She testified: Q MS. LABRIE: What -- what did your son tell you? A Okay. My son told me that he doesn’t want to be caned, that he is afraid of caning him again. And he said that -- and we ask him, How was he caning you? And then so he said he would ask him to go to his bedroom and face the mirror and cane him.

Q What would he cane him with? A When we asked M., he said it’s a stick, stick that he uses in the plants. And then so my -- I -- Q I -- so he would have to stand in front of the mirror while he was -- A Face the mirror -- Q -- caning? A -- and bend. Q Yes. A But not looking at -- but not looking himself in the mirror. So when he demonstrated, he was bending, heads down but in front of the mirror. Q Were all of his clothes on when he was caned? A Clothes were on, yes. [ 43 ] Mr. O. testified: Q Could you please tell the Court what those disclosures were.

A Certainly. M. was very upset about a couple of things that had been going on between him and his father. And M. related to me that his father – to his – me and [Ms. P.] that his father had hit him after he had been studying and gotten questions wrong. We asked him, what do you mean hitting you? And he started to explain that it was regular practice that he would be given tough math questions or other questions in other subjects, and if he got them wrong, then [Mr. V.] would proceed to take M. to his bedroom, put him in front of the mirror, bend M. over and hit him with some sort of a cane or stick.

There was an incident as well on that exact day M. related to us whereby he was younger at the time, and [Mr. V.] had asked him to get out and check out the space between the back of the truck and another vehicle while was backing into a parking stall. M. wasn’t accurate in his measurements, and at – I don’t know if the vehicle – he never was clarified that the vehicle actually impacted the other vehicle, I don’t know. But when he returned to the vehicle, M. told me and [Ms. P.] that his father hit him in the face and made him bleed.

As well, he related to us a couple days after that as we were talking about things that his father made him shower with him. And he was so incredibly scared to tell us that, that it was so embarrassing for him. I – I felt sorry for M. I felt sorry for him the whole time, but that was especially concerning just considering about pain in – in the way he said it. He said, You – you don’t think I’m weird if you tell me this – if I tell you this, it’s just that my father makes me shower with him. And – and he was very ashamed of that. He also – M. also recalled the times that he saw [Mr. V.] hit [Ms.

P.] back in the day, and he related those events as well. Q Now, did he – did he tell you what [Mr. V.] used to hit him with? A Yes. He said a cane. When we tried to get the accurate description of the cane, and it turned out to be a – what was it, M.’s words exactly, a stick that you would use for holding up a plant. He reckoned that it was about, I don’t know, half an inch in diameter and fairly long, maybe 3 or 4 feet long. Q And was M. – did he mention whether or note he was clothed while this was happening? A Certainly he had his clothes on. I asked him, Did he take your pants off? No, he did not.

Q And did he give you any indication of how often this would happen? A He said it was quite frequent. He – he can’t remember any exact times, but he said it was more than a few times per day if they were on a study session. [ 44 ] M. told his mother and Mr. O. most of this conduct took place between October, 2009 and June, 2010 when his father, while assisting M. with his schoolwork, would ask questions M. could not answer. However, Mr. V. did not cane M. during the period January 21-February 17, 2011. [ 45 ] M. also told them of other conduct that included Mr.

V. forcing M. to travel to Vancouver without allowing him to urinate, refusing to allow M. to contact his mother by phone, and repeatedly and publicly accusing M. of being racially impure in that he is half Filipino and half Iranian; M. also told them about a Taser his father owned. [ 46 ] Ms. P testified that when she asked M. why he had not told her these things before he told her he didn’t want to tell her because he was afraid that she would then tell his father and because of the joint custody status, his father would come to learn of M.’s concerns. [ 47 ] On February 28, 2011 Ms.

P. sent the below email to Mr. V.. Ms. P. testified that prior to Mr. V. leaving for B.C. on February 17, she had phoned Mr. V. several times to try to discuss the three points in her e-mail but Mr. V. hung up on her or told her not to disturb him. [Mr. V.],

Since I have to be the adult here, here is my phone number 403-[...]. I am tired of your hanging up the phone when (sic) on me like a little girl, so don’t call me unless you are prepared to discuss things like a man. I only want to know three things from you anyways so you can just email me them and then so I don’t have to listen to your emotionally abusive words. 1. when are you coming back. 2. what is your contact number for emergencies. 3. where are we meeting when you come back as a formal meeting to discuss M.’s future.

I am tired of letting you take too much control of my life and from this point forward, I am using the law and your own stupidity against you. You assume I have no capacity to do anything and that your physical and emotional abuse you use on me and M. has made us afraid of you. That was true for many years but now that I see the true effect you have on my life and the way people should really treat me and my son with respect and love I know better. I am removing your horribly controlling behaviour from my life, once and for all.

The agreement is old, every lawyer I have had it in front of laughs at it and says they have never seen anything this silly or one sided. I want to change it. M. wants to change it. If you do not grant us the opportunity to sit down and change the agreement outside of court ... you have forced me to do it inside of court then. I don’t want to spend that kind of money but if you force me to ... I will have no choice. For the sake of your son please consider this carefully. [ 48 ] Mr. V. called Ms. P. on March 4, 2011 about the email. Ms. P. spoke to Mr.

V. about varying the consent order and obtaining his permission for M. to travel with her. It appears nothing was resolved during the conversation. [ 49 ] After this, Ms. P. went to both Child Welfare and the police seeking information on how to resolve the matter and protect M.. Both agencies advised her to make an application for a restraining order. [ 50 ] Mr. V. testified and denied ever caning M. and that he did not believe in caning. When asked whether he had ever threatened to cane M., Mr. V. testified: Q Let’s get to the point right now. Did you ever threaten to cane M.? A I – I can’t recall that.

I – I – I have yelled at him. I have called him an idiot, and I have called him – that his actions are stupid on occasions. And – but these are – these are – these are words that have been described in the Oxford Dictionary. Stupidity, the – the Oxford Dictionary definition is un – unintelligent or unthoughtful behaviour. So I know it has different connotations in North America, but that’s the meaning of the word. And so it’s not out of place for me to have said that. [ 51 ] Shortly after this answer Mr. V. testified:

Applicant’s statement on oath that I threatened to cane him to the bone is untrue. I am not familiar with such an expression. I have never used such a threat. [ 52 ] Mr. V. admitted on more than one occasion he had yelled at M. when assisting M. with his homework. For example, Mr. V. testified in direct: A Well, the most important issue here, My Lady, is that M. was a very fine boy, but he did not take to his studies voluntarily. He till to this day will not open his books and study on his own. He needed to be motivated, induced and occasionally forced to do so. And when I say “forced,” I don’t mean by beating.

It was a combination of yelling, you know, saying that I’m going to cut off his television time and DVD time, I’m not going to take him swimming, and stuff like that, you know. So those where my disciplinary actions. It came with a very loud voice on occasions. And the – when – when he – when he made stupid mistakes, I told him that they were stupid. And you know, I – I – I admit to that. But I did not beat him. I may have paced up and down the corridor, yelling on top of my voice.

I sat down with him patiently and explained to him that, Look, once you fall behind in the class, you know, it’s going to be very difficult for you, you’re not going to enjoy school, you are going to fall further and further behind, and you will eventually drop out of school, and – and life will be very tough for you in later years when – when – when – when, you know – and I gave him lots and lots of examples. And I used this therapy all the time where we would see an unfortunate individual, and I said, Look this is what happens when you drop out of school, you know, and stuff like that.

But it was a combination of motivation, inducement, yelling, disciplinary action, and – and – and, you know, the – the important point that I want to make to this Court is that every child is different. There are some children which will run to their books. There are others which will maybe run on some days and avoid his books on the other days, and there are some that will avoid them all the time. M. unfortunately fell in the last category. He would not voluntarily study or do his homework till I – I – I coaxed him, you know, sat down with him, we would work together.

I’d do my work, and he would do his work, you know. Well, that – that was a strong mote (sic) – inducement for him. I would take him to the library for the primary reason that I would show him other children of his age. And I said, Look, all these guys are studying. And that would motivate him. But on his own, he would not be motivated. This was – this is the peculiarity of – of individual child characteristics. The psychologists will say that.

But in essence it took a lot of hard work and discipline and disciplinary action and perhaps yelling to get M. who is at the bottom at the class in Grade 5 to within the first five students in his class. In fact, he had the highest marks in mathematics and science, and he was given an awards – certificates of award for – for two of the subjects. And he was also given a third certificate to show the greatest improvement. [ 53 ] Mr. V. also denied not stopping on trips to Vancouver for M. to urinate, denied not allowing M. to telephone his mother and denied owning a Taser. [ 54 ] Lastly, Mr.

V. denied the allegation he forced M. to shower daily with him and explained the showering this way: ... Applicant’s allegations that I forced M. to shower daily with me is untrue. During the period January 10 th 2 – 2011, to February 17 th , 2011, we both showered at the rec centre with dozens of other males when we frequently went swimming. Okay? When – I – I – I don’t – I don’t think we ever showered in that period at home. We have showered at – at other times going back a year ago or so, whatever, you know, and I admitted to that in my affidavit. M. is reluctant to shower on his own.

I – I – and I haven’t figured out exactly why that is the reason. It may very well be that he’s fearful of getting soap in his eyes, something he complains bitterly about when it does occur. So I have induced him to shower at the same time with me. Apart from casually observing that he cleanse himself, it also makes more efficient use of the hot water because, you know, while he’s scrubbing his face, you know, and – and body, I’m – I’m showering and – and vice versa. I – I say on – on oath that I had never touched his private parts, his rectum area or his genitals after the age of 4.

At best I would assist him to wash his back or his face because he was reluctant to the soap getting in his eyes. So – but I have two bathrooms in my house, and M. has always been free to shower in either bathroom at any time. He simply does not do

so. ... [ 55 ] Mr. V. called two additional witnesses in his case, both of whom testified to their observations of Mr. V.’s parenting of M.. Both spoke of Mr. V.’s parenting in a positive light, albeit their opportunity to observe Mr. V.’s parenting was in a public venue, once per week. Positions of the Parties [ 56 ] Counsel for Ms. P. and counsel for M. submitted the evidence of Ms. P. and Mr. O. should be accepted by the Court and this evidence clearly establishes that M. fears his father because of the past caning and threats of caning, and other related conduct.

Accordingly, a permanent restraining order should be issued. [ 57 ] Mr. V., both during his testimony and his submissions, stated the allegations are untruthful. He submits they have been fabricated by Ms. P. in an attempt to alienate his son from him and is an attempt by Ms. P. to vary the shared parenting order. He stated he is a caring father who has always had M.’s best interests at heart. Analysis [ 58 ] In assessing the evidence of the Applicant’s case, I am cognizant of the frailties of hearsay evidence. I am also cognizant of Mr.

V.’s submission that this application for a restraining order is a “back door” means of varying the parties’ shared parenting order. [ 59 ] I begin my assessment of Ms. P.’s evidence with her email to Mr. V. dated June 30, 2010. The contents of the email are consistent with M. telling his mother about his father caning him and threatening to cane him while studying. The email was sent approximately eight and one-half months prior to Ms. P.’s swearing her affidavit in support of the restraining order. [ 60 ] To find this application is a means of varying the shared parenting order would mean Ms.

P. planned a sham application some eight and one-half to nine months prior to her bringing it, by sending the email of June 30, 2010 to Mr. V.. I do not accept that Ms. P. orchestrated the matter in this way. [ 61 ] I also take into account the evidence of Ms. P. and Mr. O. that M. does not want to have anything to do with his father. Judges in family matters routinely observe children moving from one parent’s home to the other to avoid the parent who is the strict disciplinarian of the two parents. In this case it is clear that Mr. V. is the strict parent, at least when it involves education.

However, we do not see those same children then wanting to have nothing to do with the strict parent as is the case here. [ 62 ] The evidence before me from all of the witnesses called establishes M. is an intelligent, caring, sensitive, polite and kind individual. M.’s statement of wanting nothing more to do with his father, even though his mother and Mr. O. encourage him to have a safe relationship with his father, is evidence I find to be confirmatory of the allegations. [ 63 ] I also observe in assessing the evidence of the Applicant’s case that Mr.

V. did own a Taser like instrument in his home at the time Ms. P. made her application. I also observe Mr. V. testified he and M. showered together, albeit he testified it was because M. was reluctant to shower on his own. [ 64 ] Mr. V.’s evidence troubles me in several areas. For example, when asked about the allegation whether he had ever threatened to cane M., he testified “I can’t recall.” [ 65 ] Mr. V. held himself out as an individual who is very tolerant of different religions and race in relation to the allegation of accusing M. of being racially impure.

However, it is evident from his cross-examination with respect to his March email respecting M.’s

teacher, that he is not as tolerant as he held himself out to be. [ 66 ] It was apparent to me from Mr. V.’s evidence that he considers himself to be superior to Ms. P.. [ 67 ] When I consider: i. Mr. V.’s past remarks respecting K.G.; ii. his superior attitude vis á vis Ms. P.; and iii. he never denied accusing M. of being racially impure, he only claimed that he did not damage M.’s self worth; I find Mr. V. did accuse M. of being racially impure. [ 68 ] I also found Mr.

V.’s explanation of why he and M. showered together, especially the part with respect to this being a more efficient use of water, as an unbelievable explanation. Thus, I do not believe Mr. V. when he testified he did not force M. to shower with him. [ 69 ] These issues and others with Mr. V.’s evidence lead me to reject Mr. V.’s evidence when it conflicts with that of Ms. P. and Mr. O.. [ 70 ] There is no doubt in my mind that Mr. V. loves his son and wishes him to succeed academically. I find that Mr.

V.’s method of discipline when he assisted M. in his studies included scolding, yelling and withholding privileges, but also included caning and threats of caning. These latter actions meet the test for the granting of a restraining order and I grant a permanent restraining order on the same terms as the interim restraining order. [ 71 ] I am of the view, like M.’s mother and Mr. O., that it is in M.’s best interests to have a healthy relationship with both his parents. Therefore, taking into account the length of time Mr.

V. has been bound by the interim restraining orders, the permanent restraining order will end July 31, 2012. [ 72 ] However, in light of Mr. V. caning and threatening to cane M., I am staying the shared parenting provision of the May 2004 Order until further order of the Court. To my mind, if Mr. V. wishes to rebuild his relationship with M., it must be in an environment where M. feels safe. At present, residing in his father’s home is not a safe environment. Heard on the 3 rd and 24 th days of June, 2011, the 12 th day of July, 2011 and the 27 th day of October, 2011.

Dated at the City of Calgary, Alberta this 25 th day of May, 2012.

E.A. Hughes J.C.Q.B.A. Appearances: Bernadette L. Labrie Family Law Office for the Applicant (Defendant) Mr. V. Self-represented, the Respondent (Plaintiff) D.K. Colborne, for the child, M.