BB v. SLW, 2013 ABQB 51

Court of Queen ’ s Bench of Alberta Citation: BB v. SLW, 2013 ABQB 51 Date: 20130121 Docket: 1201 09247 Registry: Calgary Between: BB Plaintiff - and - SLW and TW Defendants _______________________________________________________ Reasons for Judgment of J.T. Prowse, Q.C. Master in Chambers _______________________________________________________ [ 1 ] The plaintiff BB has sued W, his former common law wife, and her new husband. The defendants apply to strike out the statement of claim. [ 2 ] BB alleges that the defendants provided false and defamatory statements: 1. Which resulted in him temporarily losing custody of his son. Joint custody has since been restored;

2. Which resulted in a restraining order being issued against him, preventing him from having contact with SLW or her daughter. Therestraining order, or at least a subsequent version of it, remains in force with respect to the daughter but not with respect to SLW; and 3. Which resulted in criminal charges being brought against him for sexual interference with SLW’s daughter.

The criminal charges havesince been withdrawn. [3] The defendants’ application to strike is brought under Rule 3.68, which allows the court to strike out a statement of claim forvarious reasons, such as: - the statement of claim discloses no reasonable claim (no evidence may be submitted under this ground). - the statement of claim is frivolous, irrelevant or improper, or constitutes an abuse of process (evidence is permissible under thesegrounds). Are the claims involving interference with custody barred by Frame v. Smith? [4] The defendants rely on the 1987 Supreme Court of Canada decision in Frame v.

Smith, (SCC), [1987] 2 S.C.R.99 which determined that a spouse has no right of action against his former spouse (and her current spouse) for interfering with hisaccess to his children. [5] In Frame, the husband alleged that his ex-wife and her new husband did everything in their power to frustrate his access to hischildren. His ex-wife moved from place to place making access impossible. She changed the children’s surname and religion, told themthat their father was not their father, forbade telephone conversation with him and intercepted his letters to them.

The husband allegedthat as a result he suffered severe emotional and financial damage. He sought judgment for his out of pocket expenses as well as generaland punitive damages. [6] The Supreme Court of Canada ruled that there was no common law right to damages for interference with custody, and thendiscussed whether that situation should be altered. The Court commented: It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, forone cannot help but feel sympathy for the [father] and others in like situations.

But there are formidable arguments against the creation ofsuch a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not onlysuing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, forinterfering with rights of access is one that invites one to pause.

The disruption of the familial and social environment so important to achild’s welfare may well have been considered reason enough for the law’s inaction, though there are others. [7] In the end the Supreme Court of Canada in Frame noted that the provinces had enacted comprehensive family law statutesdealing with custody and access. This provincial legislation does not provide for the right to bring damages actions for interference withcustody and access.

Accordingly the court concluded that an action for damages did not lie for interference with custody and access. [8] What happened in this case, which did not happen in Frame, was the obtaining of an ex parte custody order in favour of SLW,which was later set aside. I note, parenthetically, that it was open to BB to seek costs from SLW at the time of the setting aside of that exparte order. [9] A separate civil action for damages is not available to BB as a result of any false or misleading testimony leading to the ex partecustody order. To quote from Hargreaves v.

Bretherton, [1958] 3 W.L.R. 463 (cited with approval in K.(L.M.) v. Ontario (Ministry ofCommunity & Social Services), 1996 CarswellOnt 1297 @ para. 62): The simple point that I have to decide is whether or not an action lies at the suit of the person who says that he has been damnified by

false evidence against him. In my opinion it is perfectly clear and beyond peradventure nowadays that such an action will not lie. [10] Accordingly, I am striking out BB’s claims arising from the defendants’ interference with his custody and access to his son,including the obtaining of the ex parte order in question.

BB’s claim for damages arising from his ex-spouses obtaining of a restraining order [11] BB and SLW had shared 50/50 custody of their son C for a number of years. [12] In April of 2011, SLW obtained an ex parte restraining order against BB, on the basis of a recent complaint regarding an allegedsexual interference by BB against SLW’s daughter M, and on the basis of alleged violent behaviour of BB against SLW. The restrainingorder against SLW has since been set aside.

However, the decision setting aside the restraining order against SLW, on December 14,2012, was based on the restraining order not being currently required with respect to SLW. The decision did not deal with whether or notthe restraining order with respect to SLW should or should not have been granted in the first place. The restraining order with respect toSLW remains in place. [13] The Hargreaves decision, supra, makes it clear that no civil action for damages is available to BB for testimony resulting in therestraining order, even if it were demonstrated to be false testimony.

Accordingly I am striking out those portions of BB’s claim relatingto the restraining order(s). Can BB assert an action for damages with respect to the criminal charge brought against him? [14] On May 17, 2011, BB was charged with sexual interference with a minor, namely SLW’s daughter. BB vociferously denied anywrongdoing and, in his action for damages, asserts that SLW and her present husband provided false information which caused orcontributed to the laying of this criminal charge.

The criminal charge was withdrawn approximately 10 months later. [15] The defendants have not provided me with any case law authority to support the position that Frame v Smith applies to bardamages claims for malicious prosecution arising out of family law disputes. [16] The issue of whether a claim for damages can be brought for malicious prosecution arising out of family disputes was discussedin an

article by Nicolas Bala entitled Tort Remedies and the Family Law Practitioner, (1998) 16 Canadian Family Law Quarterly 423,where the author commented: If a false allegation of abuse results in a criminal prosecution, the alleged perpetrator may be able to sue for the tort of maliciousprosecution. In order to succeed in this civil action, the person who is wrongly prosecuted must establish not merely that the allegationwas false, but that the person who made the allegation knew it was false and was acting maliciously in reporting to the police.

Wood v Kennedy, (1988), (ON SC), 165 D.L.R. (4th) 542, is the only reported Canadian case where such an actionsucceeded in a familial context. A 13 year old girl reported to a teacher, and later to the police and Children’s Aid Society, that her unclehad sexually assaulted her on several occasions during family visits. The police charged the uncle with sexual assault and sexualinterference, though the charges were withdrawn on the day of the trial.

The uncle then sued the girl and her parents for a number of tortsincluding malicious prosecution and slander, and the girl counterclaimed for damages for the sexual assault. Justice Sharpe meticulouslyconsidered the allegations and concluded that the girl deliberately lied, apparently making the charges because she was upset at herparents’ divorce, and was seeking attention. The judge observed that the fact that she made a deliberate lie to the police is evidence ofmalice, and allowed the claim based on malicious prosecution, dismissing claims based on slander and intentional infliction of emotionaldistress.

The uncle received special damages equal to his legal fees in the criminal case, and $20,000 in general damages; the uncle’swife received $5,000 in damages; and each of their three children received $1,000. However, the court dismissed claims against the girl’sparents based on malicious prosecution and negligence, and there may be real difficulty in enforcing the judgment against only the girl.

[ 17 ] The defendants have not met the onus on them to show that BB’s claim for malicious prosecution is frivolous, irrelevant or improper, or constitutes an abuse of process. Accordingly I decline to strike out those portions of BB’s claim. The procedural issue: does the style and content of BB ’s statement of claim comply with the Rules of Court? [ 18 ] The second issue raised by the defendants is that, even if one or more of the causes of action asserted by BB are recognized at law, the manner in which they are pled is improper.

One of the primary complaints is that BB’s statement of claim is full of evidence, and does not restrict itself to material facts. The statement of claim is 104 paragraphs long, and resembles an affidavit rather than a statement of claim. [ 19 ] BB represents himself. When he appeared on this application I recommended that he retain legal counsel. He indicates that he cannot afford to do so. [ 20 ] I explained to BB that his self-representation cannot prevent the court from requiring compliance with the Rules of Court. The Rules of Court are not a random exercise in technicalities.

The rules in question are designed to compel plaintiffs to allege clear and concise material facts against defendants. If the allegations made against defendants are obscure and prolix, how can defendants have a fair chance to defend themselves? If irrelevant and prejudicial matters are allowed to remain in a statement of claim, how can defendants expect a fair hearing? [ 21 ] I had considered going through BB’s statement of claim and striking out the many objectionable passages, such as those containing evidence, speculation etc.

By the time those paragraphs were struck, along with passages dealing with the custody issues and the restraining order issues, what would remain would likely not be intelligible. [ 22 ] Upon reconsideration, I consider it more efficient to direct BB to bring forward a proposed amended statement of claim dealing with the remaining malicious prosecution claim, in a format and content in accordance with the Rules of Court.

If BB cannot afford a lawyer to provide full representation, then I strongly recommend that he at least hire a lawyer on a limited retainer to assist with the necessary redrafting. [ 23 ] BB is to bring forward an application to approve an amended statement of claim by the later of (1) sixty days from the date of entry of the order resulting from these reasons, or (2) sixty days from the final resolution of any appeal from the order resulting from these reasons.

In the meantime, until an amended statement of claim has been approved and filed, any further steps in this action, including production of documents, are stayed. Costs [ 24 ] Costs of this application may be spoken to when BB brings forward his application to amend his statement of claim. If he fails to do so within the time set out above, then either party may apply on notice to have costs determined. Heard on the 10 th day of October, 2012. Dated at the City of Calgary, Alberta this 21 st day of January, 2013.

J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Judd M. Blitt Billington Barristers for the Applicants / Defendants BB Respondent / Plaintiff