Walker v Walker, 2015 ABQB 789

Court of Queen ’ s Bench of Alberta Citation: Walker v Walker, 2015 ABQB 789 Date: 20151211 Docket: FL03 48493 Registry: Edmonton Between: Bruce Walker Respondent/Applicant - and - Hui Jeong Walker Applicant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Walker asks the court to strike down the without notice Emergency Protection Order issued against her on the grounds that the EPO hearing officer was not presented with a situation of urgency, especially given the order in the criminal proceedings that she was not to contact her husband. [ 2 ] The no contact provisions in the criminal proceedings related only to Mr. Walker and the matrimonial home: they did not prohibit contact between the mother and her son.

The EPO was a mechanism available to protect the parties’ son from contact with his mother at least until some of the issues had been resolved. In all the circumstances, there was sufficient seriousness and urgency to ground an EPO.

Cases and authority cited [ 3 ] By the court : R. v Steele 2014 SCC 61 . 1. Background [ 4 ] The parties are the married parents of a 14 year old child. [ 5 ] On November 19, 2015, an incident occurred in the matrimonial home. The parties disagree about the incident. The husband swears that his wife grabbed a kitchen knife, pointed it at him, and made a stabbing motion towards him. He also swore that his wife had made similar gestures in the past, both to him and to the parties’ 14 year old son. The wife swears that nothing of the sort happened.

The husband called the police who arrived at the home and charged the wife with assault with a weapon and uttering threats. The wife was released on an undertaking to appear which apparently included a condition that she have no contact with her husband; no copy of the undertaking to appear was provided to this court. [ 6 ] Ms.

Walker acknowledges that she has been in an emotionally difficult situation as a result of a family tragedy which occurred some 5 months ago. [ 7 ] On November 21, 2015, the husband applied for, and obtained, an Emergency Protection Order; the process leading to the granting of such an order is undertaken, pursuant to the authorizing statute, without notice to the party opposite. The EPO granted Mr. Walker exclusive possession of the matrimonial home, and prevented Ms. Walker from having contact with the parties’ 14 year old son and with Mr. Walker’s mother. The EPO was served on Ms. Walker on November 21, 2015.

Ms. Walker acknowledges that, at some time after November 19, she did contact her son; she states “I contacted my son (as police advised me the No Contact Order only applied to Bruce and the marital home). I wanted to speak to my son . . . I did not talk to him about the incident that occurred or about Bruce at any time during the phone call or via text message.” [ 8 ] The EPO was returnable in the Court of Queen’s Bench on December 3, 2015. At that time, the respondent, Ms. Walker, had filed an affidavit denying the events as described by Mr. Walker and asserting that it is, in fact, Mr.

Walker who has been verbally, emotionally and physically abusive during the marriage and that he gave false evidence about what happened on November 19, 2015. She added this: “Because Bruce already had a No Contact order in place, which I was abiding by, there was no contact, threats, stalking or harassment, I am unsure as to why Bruce also applied for an Emergency Protection Order”. The court’s normal procedure in a situation such as this, where there are conflicting affidavits which cannot be assessed without testimony, is to set the earliest possible date for an oral hearing.

On December 3, the earliest day on which a one hour hearing of testimony in this matter could be heard would be approximately April, 2016. Because it is not possible, at that initial hearing in this court to determine if the EPO should be confirmed, typically, the EPO is extended until the date of the oral hearing.

The Court’s normal procedure in a situation where a child is affected by an EPO would be to make inquiries whether it is appropriate to amend the EPO to allow contact between the parties in relation to parenting and, if that is not appropriate, to determine whether the party who has, in the EPO, asked for a change in an existing parenting situation has already initiated parenting proceedings, and if they have not, why the EPO should continue to apply to affect the parties’ child. The court’s normal procedure where an EPO extends to another adult family member, as is the case here in relation to Mr.

Walker’s mother, is to inquire whether the grandmother resides with Mr. Walker and, if so, to further inquire what authority the EPO applicant had to act for the other adult; in the absence of authority, the court would typically ask for submissions about why the EPO should apply to the other adult living in the residence. [ 9 ] However, on December 3, Ms. Walker, who was represented, asked the court to first determine whether the EPO should be struck as failing to meet the requirement, in s. 2(1)(

b) of the Protection against Family Violence Act that there be “seriousness or urgency”. [ 10 ] Ms. Walker will next be in criminal court on December 9, 2015. [ 11 ] The Protection against Family Violence Act , includes the following provisions:

Preamble . . . WHEREAS an effective response to family violence provides an immediate period of safety to victims of family violence; . . . Emergency protection order 2(1) An order under this

section may be granted by a judge of the Provincial Court or a justice of the peace, on application without notice to the respondent , if the judge or justice of the peace determines (

a) that family violence has occurred, (a.1) that the claimant has reason to believe that the respondent will continue or resume carrying out family violence, and (

b) that, by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant .

(2) In determining whether an order should be granted, the judge of the Provincial Court or justice of the peace must consider, but is not limited to considering, the following: (

a) repealed 2006 c8 s5 ;

(

b) the history of family violence by the respondent toward the claimant and other family members; (b.1) whether there is or has been controlling behaviour by the respondent towards the claimant or other family members; (b.2) whether the family violence is repetitive or escalating; (

c) the existence of any immediate danger to persons or property; (c.1) . . .; (c.2) the effect of exposure to family violence on any child of the claimant or on any child who is in the care and custody of the claimant; (

d) the best interests of the claimant and any child of the claimant or any child who is in the care and custody of the claimant; (

e) the claimant’s need for a safe environment to arrange for longer - term protection from family violence.

(2.1) Without excluding any other circumstance, in determining whether an order under this

section should be granted, by a judge of the Provincial Court or a justice of the peace, the following circumstances should not preclude the granting of an order : (

a) that an emergency protection order, Queen’s Bench protection order, restraining order or order of any Court ordering the respondent not to contact or communicate with the claimant has been granted previously; (

b) that the respondent has previously complied with an emergency protection order, Queen’s Bench protection order, restraining order or order of any Court ordering the respondent not to contact or communicate with the claimant; (

c) that the respondent is temporarily absent from the residence at the time of application for an order; (

d) that the claimant is temporarily residing in an emergency shelter or other safe place; (

e) that criminal charges have been or may be laid against the respondent ; (

f) that the claimant has a history of returning to the residence and of residing with the respondent after occurrences of family violence.

(3) An order under this

section may include any or all of the following: (

a) a provision restraining the respondent from attending at or near or entering any specified place that is attended regularly by the claimant or other family members, including the residence, property, business, school or place of employment of the claimant or family members; (

b) a provision restraining the respondent from communicating with or contacting the claimant and other specified persons; (

c) a provision granting the claimant and other family members exclusive occupation of the residence for a specified period, regardless of whether the residence is jointly owned or leased by the parties or solely owned or leased by one of the parties; (

d) a provision directing a peace officer to remove the respondent from the residence immediately or within a specified time; (

e) a provision directing a peace officer to accompany a specified person to the residence within a specified time to supervise the removal of personal belongings in order to ensure the protection of the claimant; (

f) a provision directing the seizure and storage of weapons where the weapons have been used or have been threatened to be used to commit family violence; (

g) any other provision that the judge of the Provincial Court or justice of the peace considers necessary to provide for the immediate protection of the claimant. (Emphasis added) 2. The circumstances before the EPO hearing officer were sufficiently serious and urgent to meet the statutory test [ 12 ] I have not been able to find any Alberta decision in which the “seriousness or urgency” provisions of the Act have been interpreted. However, as the Supreme Court of Canada recently reminded us in Steele : (the) modern principle of statutory

interpretation (is) that the words of legislation must be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. [ 13 ] Turning then to the provisions of the Act, I note that, in its

preamble, the Alberta Legislature indicated that one of its objectives was to assure “an immediate period of safety to victims of family violence”. Also, s. 2(1)(

e) of the Act specifically states that the laying of criminal charges against an EPO respondent does not preclude the granting of an EPO order. Finally, the court notes that the granting of an EPO is discretionary, even if an applicant satisfies the requirements of s. 2(1) of the Act. [ 14 ] The sworn evidence before the hearing officer set out a situation in which violence with a weapon was threatened by the respondent. It is not clear from the transcript of the evidence before that hearing officer if the parties’ teen-aged son was present when the alleged threat was proferred or even if he was in the residence; the hearsay evidence on the application was, however, that the

respondent had similarly threatened the teen-aged son on other occasions. In light of that sworn evidence, it was obvious that protection was required for the teen-aged son as well as for the father. [ 15 ] According to the mother’s own evidence, her release terms in the criminal proceedings applied only to the father and to the matrimonial residence, not to the son.

An EPO can, however, protect the son. [ 16 ] As to the level of seriousness of the conduct, the hearing officer was entitled to take into account the fact that police officers who attended at the residence and who had the opportunity of observing the respondent, charged the respondent with two criminal offences.

The hearing officer would have been aware that, even though a great many complaints are made to the police of what appears to be criminal conduct in a domestic situation, the police do not always, or even usually, lay criminal charges; rather, the police apparently often recommend that the person affected by a family member’s conduct apply for an EPO.

And, of course, in Steele itself, we are reminded that a "serious personal injury offence" includes the notion of "violence" which notion “is a harm-based one that encompasses acts by which a person causes, attempts to cause or threatens to cause harm and not a force-based one”, i.e. no actual touching is required.

If those concepts are appropriate in the criminal justice system, which has a much higher threshold of proof and a much more serious level of jeopardy than the civil justice system, then they clearly must apply in EPO proceedings, which are civil in nature. [ 17 ] As to the level of urgency, it will be seen that criminal proceedings apparently move along at a much faster pace than do civil proceedings: December 9, 2015, for the next appearance in criminal matters versus April, 2016 for the next appearance in this civil matter.

The obvious problem which results from this combination of lack of synchronicity and the fact that Mr. Walker is not a party in the criminal proceedings is that, at any time between now and April, 2016, the no contact order issued in the criminal proceedings could be varied or struck out despite the fact that the lower standard required as the basis for an order of protection for families might still be met. [ 18 ] In

summary, there was sufficient seriousness and urgency in the evidence before the hearing officer to ground the hearing officer’s conclusion that it was appropriate in the circumstances here to issue an EPO. [ 19 ] In the result, if the parties agree, they can prepare an EVV (oral) hearing order setting out: the date of the oral hearing and addressing the template oral hearing issues: issue to be determined, length of hearing, number of witnesses, limits on pre-hearing filings, limits on evidence in chief, etc.; that consent order can be sent to me for my signature.

Similarly, again if they are able to agree, they should prepare a consent order stating if one of the parents should initiate a parenting hearing and if so, which one. In the latter form of order, they should incorporate a determination concerning whether Mr. Walker’s mother should remain on the EPO. All consent orders can be sent to me direct. If the parties are unable to agree on the issues relating to the EVV hearing, to the parenting issue and to the grandmother’s presence on the EPO, they will have to return to the EPO chambers list to have those issues decided. Heard on the 3 rd day of December, 2015.

Dated at the City of Edmonton, Alberta this 10 th day of December, 2015. J.B. Veit J.C.Q.B.A. Appearances: Barry W. McMullan, Barrister & Solicitor for the Applicant, Ms. Walker Dustin Tkachuk, Family Law Office for the Respondent, Mr. Walker