MacNeil v Fithen, 2016 ABQB 449

Court of Queen’s Bench of Alberta Citation: MacNeil v Fithen, 2016 ABQB 449 Date: 20160816 Docket: FL03 50166 Registry: Edmonton Between: Shannon MacNeil Applicant - and - Shaun William Fithen Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Some of the material seen and considered by, the Provincial Court Judge who heard the original application and granted the Emergency Protection Order, was not entered as exhibits. In light of the requirement in s. 3(3) (

a) of the Protection Against Family Violence Act that, at a confirmation hearing, a Queen’s Bench judge “must consider all the evidence that was before the judge of the Provincial Court”, does the failure to have exhibits of what the Provincial Court received as evidence deprive this confirmation court of jurisdiction? [ 2 ] If this court has jurisdiction, and confirms the EPO, should it award costs to the applicant? [ 3 ] The short answers are, no and no. [ 4 ] As to jurisdiction, the respondent’s concern is legitimate; even without a statutory requirement to do so, it is obvious that all evidence considered by a court of record should be made part of the record.

However, in the specific circumstances here, the applicant has been able to prove that the evidence she produced at this hearing is the same evidence which she had presented to the Provincial Court judge. Therefore, this superior court has not lost jurisdiction.

[ 5 ] As to costs, although I recognize the applicant’s concern that there should be consequences in this form of civil process as there are in other areas of civil process, having in mind our Court of Appeal’s direction in Lenz , I have concluded that, generally, if an unsuccessful applicant is not required to pay costs it would be inequitable to award costs to a successful applicant. Cases and authority cited [ 6 ] By Ms. MacNeil : Jama v Jama 2016 ABQB 379 ; Lenz v Sculptoreanu 2016 ABCA 111 ; Denis v Palmer 2016 ABQB 54 ; Siwiec v Hlewka 2005 ABQB 684 . [ 7 ] By Mr.

Fithen : Protection Against Family Violence Regulation , Alta Reg 80/1999, s.5; Alberta Evidence Act , RSA 2000, c A-18, ss.41.1 – 41.8; R v Khelawon 2006 SCC 57 ; R v JSC , 2013 ABCA 157 ; CKS v OSS , 2014 ABCA 416 ; NDA v KBA , 2009 ABQB 26 ; TP v JP , 2005 ABQB 529 ; Protection Against Family Violence Act , RSA 2000, c P-27, s.1(

e) and s.4(1) . 1. Background [ 8 ] On May 2, 2016, at an EPO hearing where she was unrepresented, Ms. MacNeil showed to the presiding Provincial Court Judge her telephone on which there apparently was a photograph of her daughter with a bump on her forehead as a result of a room divider falling on her on or about April 30, 2016 and a photograph of injuries on Ms. MacNeil’s leg in March, 2016 (see page 9, lines 29- 31, page 10, lines 7 and 9). She also offered the Provincial Court Judge the opportunity of listening to a recording which Ms.

MacNeil had also made on her telephone of “half of” the interaction between Ms. MacNeil and Mr.

Fithen on April 30, 2016; the presiding judge decided not to listen to the recording. [ 9 ] The Provincial Court granted an EPO, stating: I am satisfied: that family violence has occurred; that the claimant Shannon MacNeil has more than good reason by far to believe that the respondent will continue or resume carrying out family violence. (It has been described very clearly as, you know, weekly incidents of physical violence against her for the last 15 months, some 80 incidents of physical violence in evidence of it that she has recorded herself); and, that by reason of the seriousness and urgency this order should be granted. [ 10 ] On May 11, 2016, presumably at the request of Mr.

Fithen, who was represented, the confirmation hearing was adjourned to June 3, 2016 and the EPO was extended to that date. [ 11 ] On June 3, 2016, presumably to allow time for preparation, the confirmation hearing was adjourned to July 28 th to be heard by way of viva voce hearing and the EPO was extended to that date. [ 12 ] On July 28, Mr. Fithen was in custody, perhaps as a result of the events of April 30. In any event, because of the length of time which had already elapsed since the original EPO was granted, the court sat into the evening. At the outset of the hearing, Mr.

Fithen’s lawyer raised the issue of jurisdiction. Because of the very lengthy delay that would necessarily ensue from any further adjournment of the viva voce hearing, the court concluded that it would hear the evidence of the parties on the confirmation application and reserve the issue of jurisdiction. The court entered as exhibits photographs of Ms. MacNeil’s daughter originally taken on Ms. MacNeil’s telephone, photographs of Ms. MacNeil’s leg injuries originally taken on Ms. MacNeil’s telephone and thumb drive of oral statements allegedly from Mr. Fithen taken from Ms. MacNeil’s telephone.

At the hearing on July 28, after submissions were concluded, the court gave reasons for confirming the EPO, subject, of course to the issue of jurisdiction. The oral reasons were narrowly based: the testimony of each of Ms. MacNeil and of Mr. Fithen was in agreement that there had been a physical scrap between them on March 23, 2016 which had resulted in physical injuries to Ms.

MacNeil’s leg. [ 13 ] The Protection Against Family Violence Act includes the following provisions: Confirmation of emergency protection order 3(1) If a judge of the Provincial Court . . . grants an emergency protection order, the judge . . . must, immediately after granting the order, forward to the Court of Queen’s Bench a copy of the order and all supporting documentation, including any notes.

(2) Repealed 2011 c4 s4 .

(3) At a hearing referred to in section 2(6), the justice of the Court of Queen’s Bench (

a) must consider all the evidence that was before the judge of the Provincial Court . . .who made the order under

section 2, and (

b) may allow additional evidence to be presented. [Emphasis added] 2. The court has not lost jurisdiction [ 14 ] Even without a statutory requirement to do so, it is obvious that all evidence considered by a court of record should be made part of the record. The loss of evidence might, in some circumstances, cause a loss of jurisdiction. [ 15 ] However, because of its inherent jurisdiction – as opposed to the statutory basis of jurisdiction of other courts - superior courts such as the Court of Queen’s Bench of Alberta, will rarely lose jurisdiction in domestic matters.

In applying contemporary standards of analysis of jurisdiction, a superior court would not lose jurisdiction even if, as could have been the situation here, there is some failure to abide by a statutory requirement. The law abhors a vacuum: a litigant who obtained an EPO for a short period of time in the Provincial Court has a legitimate right to expect that a confirmation hearing will be held in the Court of Queen’s Bench to consider whether, and for how long, the EPO should be confirmed. The fact that the Provincial Court did not make certain evidence exhibits is not the fault of the

litigant and should not deprive her of a hearing in a superior court. [ 16 ] Moreover, from the evidence at the confirmation viva voce hearing, the court is satisfied that it has reviewed, and now exhibited, the same photos that were shown to the Provincial Court judge: see ex. 3, formerly VD ex. 4, ex. 5, and ex. 6. In other words, on the facts of this case, this court was able to “consider all the evidence that was before the judge of the Provincial Court”. [ 17 ] It is also true that the Provincial Court did not enter into the required process to ensure that the photographs tendered by Ms.

MacNeil met the accuracy and fairness pre-requisites to the admissibility of such evidence; however, evidence dealing with accuracy and fairness was heard at the viva voce hearing in a voir dire prior to the tendered photographs being entered.

Since the court is satisfied that the same photos were used in this court as had been used in the original court, this court is also satisfied that the same pre-requisite investigation into the accuracy and fairness of the photos would have produced the same result in the Provincial Court: there has been no substantial failure of admissibility. [ 18 ] Furthermore, this court is satisfied that the respondent has not been prejudiced by the failure to have made these photographs exhibits at the Provincial Court hearing: during the viva voce hearing, not only did Ms.

MacNeil identify the exhibits that were entered as the same photos she showed the Provincial Court judge, but the respondent had the opportunity of cross-examining her with respect to those photographs, including their accuracy and fairness. [ 19 ] Finally, a confirmation hearing is a unique type of hearing: it is not restricted to considering only the evidence that was presented to the original court, but is entitled to consider additional evidence.

I agree with the respondent’s contention that if no new evidence were presented at the confirmation hearing, and important evidence which had formed the basis for the original decision was lost, then even a superior court might lose jurisdiction over the matter in dispute. However, that is not what happened here. 3. Because of the absence of equality in costs treatment, the court does not award costs to the successful applicant [ 20 ] Ms.

MacNeil was successful in having the EPO confirmed; nevertheless, I do not think it appropriate to award her costs. [ 21 ] In Lenz , our Court of Appeal observed: We do not consider it appropriate to create any impediment which would cause vulnerable victims to avoid seeking an EPO when they are at immediate risk of family violence, merely for fear that they may later have to pay adverse costs. [ 22 ] Not only is this, therefore, now the law in Alberta it is, if I may say so with respect, sensible. [ 23 ] The problem arises because of the asymmetry of awarding costs to a successful applicant but denying them to a successful respondent: the starting presumption of fairness is that equality is equity. [ 24 ] EPO proceedings are, by definition, without notice proceedings.

The issuance of an EPO typically results in the expulsion of the respondent from their residence and the imposition of an immediate impediment to the respondent’s parenting.

These consequences, together with the stigmatizing effect of the order itself, and the lengthy delay before the court can provide a viva voce hearing to resolve credibility issues, are important ways in which the objectives of the Act are met; withholding what amounts to nominal costs does not undermine the statutory objectives. [ 25 ] If the court had awarded costs, it would have been entirely appropriate to award $2,200.00 to reflect the very lengthy sitting day. 4.

Because these are both novel issues, the court does not award any costs in relation to the jurisdiction/costs issues [ 26 ] Because both the issues raised, costs by the applicant and jurisdiction by the respondent, are novel, each party will bear their own costs of the hearing of the jurisdiction/costs issues. Heard on the 28 th day of July and the 4 th day of August, 2016. Dated at the City of Edmonton, Alberta this 15 th day of August, 2016. J.B. Veit J.C.Q.B.A.

Appearances: Sarah Dargatz, Family Law Office for the Applicant Greg R Wool, Sharek & Company for the Respondent