D.F. v D.B., 2013 ABQB 636

Court of Queen ’ s Bench of Alberta Citation: D.F. v D.B., 2013 ABQB 636 Date: 20131025 Docket: 1303 00049 Registry: Edmonton Between: D.F. and S.F. and N.F. by their Litigation Representative D.F. Plaintiffs - and - D.B. Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _________________________________________ ______________ Introduction [ 1 ] This is an application by the Plaintiff D.F. to extend a restraining order obtained against the Defendant D.B. on April 22, 2013. [ 2 ] D.

F. obtained the restraining order on his behalf and as self-appointed litigation representative for his two sons, aged 9 and 11. [ 3 ] D.B. opposes the extension of the restraining order.

Background [ 4 ] D.F. and his wife S.F. (S.) separated in August 2012. Immediately after separation, D.B. moved into the family home. [ 5 ] D.F. and Ms. S. are involved in a custody dispute over their two sons. It appears that S.F. (S.) has day-to-day care of the boys. D.F.’s access to them is not obvious from the materials. [ 6 ] In January, 2013, D.F. obtained an ex parte restraining order. The review date of January 24, 2013 resulted in two competing orders. D.F. apparently appeared by telephone in front of Mr. Justice Gill and in the absence of D.B., had the restraining order extended to February, 2014.

D.B. appeared before me and in the absence of D.F. was successful in having the restraining order vacated. [ 7 ] Because of the competing orders, the parties appeared before Mr. Justice Burrows on January 29, 2013. Mr. Justice Burrows extended the restraining order directing that it be brought back to court on February 28, 2013 for review. [ 8 ] On February 28, Mr. Justice Manderscheid adjourned the matter to a special chambers application on April 22, 2013, and extended the order until then. [ 9 ] On April 22, Mr.

Justice Manderscheid extended the order until October 22, 2013. [ 10 ] He made adverse credibility findings against S.F. (S.); D.B. declined to testify. [ 11 ] Mr. Justice Manderscheid held: With respect to the case at Bar, this Court concludes that the children…have been (subjected) to both personal injury and a reasonable fear of intimidation or actual threats and intimidation, and other such psychological injury from acts of [D.B.].

In regards to D.F., again this Court holds that there is evidence to the effect which would make it clear that D.F. has been subjected to threats and intimidation by [D.B.]. [ 12 ] On September 12, 2013, D.F. filed an application returnable on October 7 for an order extending the restraining order indefinitely. The grounds in the application are: 1. That D.B. has breached the restraining order by being in the home, and 2. The boys are “terrified of the defendant and feel threatened by him. [ 13 ] His affidavit filed in support of the application says a number of things.

He says that D.B. has “physically and mentally threatened him and the boys in the past; that “without a restraining order (the boys’ mother) will force D.B. upon them. [ 14 ] D.B. has filed a response affidavit disputing virtually everything in D.F.’s affidavit and making strong accusations against D.F.’s character, parenting and motivation. [ 15 ] It is noteworthy that S.F.(S.)’s sister and parents have weighed into the dispute on D.F.’s side, having provided evidence for him at the hearing before Mr.

Justice Manderscheid in April. [ 16 ] It appears from materials on the court file that D.B. has been charged with assault on S.F.(S.) and is bound by a recognizance in relation to her. [ 17 ] It is also noteworthy that on September 10, 2013, D.B. was found by RCMP in the garage of the family home. There was no evidence that he was in the presence of the children, but it is obvious that he was within 200 meters of them. [ 18 ] D.B. also apparently faces charges with assault and uttering threats, although it is not clear who the complainants are. [ 19 ] D.F. has involved Child and Family Services on two occasions.

The first investigation was closed because the worker concluded this was part of a custody dispute. [ 20 ] Apart from D.B. being found at the residence in September, there are no new allegations. Analysis [ 21 ] It is obvious that there are significant factual differences between D.B. and D.F. Their affidavit evidence cannot be reconciled.

The only way of getting to the bottom of who did what to whom is by a trial where a judge can hear and see their evidence and make credibility findings. [ 22 ] The strongest factor in favour of not extending the restraining order is that nothing significant has occurred since April, 2013. While D.B. was at the house, there is no evidence that he has attempted to have any contact with D.F. or the boys. [ 23 ] Mr. Justice Manderscheid did not address in his decision why he extended the order for six months instead of a longer time. It is not unusual for restraining orders to be kept in force for a year.

In any event, I do not have the benefit of Mr. Justice Manderscheid’s thought process in that regard. [ 24 ] The strongest factor in extending the restraining order is that it has been effective in preventing any incidents between D.B.

and D.F., as well as the boys. To some extent, they have thus been sheltered from the obviously bitter and acrimonious dispute between their parents. [ 25 ] I have no idea as to D.F.’s motivations. I hope he is truly acting in his sons’ best interests, and not out of spite against S.F. (S.) and D.B. arising out of the breakdown of the marriage. I hope the boys are not being used as chips in the dispute between the parents. [ 26 ] I have no information as to the status of any family law proceedings between D.F. and S.F. (S).

It is a major fault of the system relating to Emergency Protection Orders and restraining orders in family matters that these emergency and often draconian orders are initially obtained ex parte independent from and without reference to the main proceedings already underway between the parties. These remedies are used by the parties directly and often do not involve the parties’ lawyers. [ 27 ] There is significant risk that these orders may be used to upset a status quo, or to obtain exclusive possession and bar access to children, in a very

summary fashion. [ 28 ] Nevertheless, here, the original order was tested by viva voce evidence and was extended for six months by Mr. Justice Manderscheid after hearing the evidence and submissions. It is frankly a bit late in these proceedings for D.B. to now come forward and swear that he has done nothing that D.F. accuses him of. [ 29 ] Mr.

Justice Manderscheid referred in his reasons to the potential for further custody and access orders in this court, and it may be that he was anticipating that a more fulsome analysis of custody and access would be conducted within the six months from the hearing before him. [ 30 ] If that has happened, no one provided me with any information on that. Decision [ 31 ] On the evidence before me, and in particular relying on Mr.

Justice Manderscheid’s fact findings at the hearing on April 22, 2013, it appears that D.B.’s conduct has subjected the boys to some form of verbal threatening or physical abuse. [ 32 ] There is nothing in the materials to indicate that D.B. has, since April 22, 2013, taken any courses relating to parenting. D.F. and S.F. (S)’s parents and sister have concerns about the effect D.B. has had on the boys. [ 33 ] D.B.’s affidavit does not alleviate any concerns that were present before Mr. Justice Manderscheid. He may be a fine man, and a fine role model and step-parent for the boys.

D.F. may be pursuing these proceedings for his own purposes and not in the interests of his sons. But these issues will have to be determined in the family law proceedings, perhaps by way of a Practice Note 8 assessment or other means, including trial. [ 34 ] In my view, the risk to the boys found by Justice Manderscheid still exists, and I am not prepared to take a chance on their well-being by not continuing the order. [ 35 ] I have no doubt whatsoever that no useful purpose is served by allowing any contact other than through counsel or in court between D.B. and D.F.

There is obviously strong animus between them. The restraining order should be made mutual regarding D.B. and D.F. There is no need for there to be any contact or communication whatsoever between them. D.F. may, of course, communicate with S.F.(

S) and vice versa, but S.F.(

S) should not be used as a conduit so that these parties can continue their hostilities through her. [ 36 ] I conclude that the appropriate and necessary thing to do is to extend the order as it relates to the boys for a further six months from today’s date. That will preserve the status quo, at least until D.B.’s fitness as a step-parent can be properly assessed. [ 37 ] I am concerned about the extent to which D.F. appears to be involving his sons in the dispute. I am concerned for their well- being. If D.F. is correct, S.F.(

S) is ignoring risks to their sons in favour of her relationship with D.B. If D.B. is correct, D.F. is acting vindictively because of his resentment over the failure of the marriage, and is using his sons as pawns to further his ends. Neither scenario paints a happy picture for the well-being of the boys. [ 38 ] As I have said above, I do not know if there are family law proceedings; if there are, I do not know the status of them. [ 39 ] The order should be amended in the following respects: 1. It will be extended to April 25, 2014; 2. It will be made mutual between D.B. and D.F.; and 3.

It will be amended to provide that D.B. may not be within 200 meters of [...] Tegler Green, Edmonton AB at any time when the boys are present at the residence. This does not affect or alter the terms of any recognizance or bail conditions D.B. may be on. [ 40 ] I recognize that S.F.(

S) is not a party to these proceedings. It appears to me that if D.B.is in her life and is intended by her to play a role in parenting the children, there should be an assessment of sorts, perhaps a Practice Note 7 assessment into D.B.’s parenting skills, or potentially a full bilateral custody assessment. [ 41 ] It also appears to me that there may be merit in appointing counsel for the boys. They are nine and eleven, and at an age when their voices might be an important part of the information to the courts on custody and access.

In circumstances where there is so much hostility between the parents, and extended family members have been drawn in, there is always a concern that the dispute overtakes

either parent’s ability to act in their children’s best interests, and an independent advocate may provide invaluable assistance. [ 42 ] I would encourage the parents to consider these available options, before they escalate their dispute and do even more harm to their children. [ 43 ] Because both parties are self-represented, I will have the formal order prepared by the LInC office. It is effective from the time of pronouncement, and I have instructed my assistant to email or fax this decision to the parties forthwith upon my signing it. Heard on the 7 th day of October, 2013.

Dated at the City of Edmonton, Alberta this 25 th day of October, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: D.F. On his own behalf D.B. On his own behalf