Diachuk v Diachuk, 2017 ABQB 750

Court of Queen’s Bench of Alberta Citation: Diachuk v Diachuk, 2017 ABQB 750 Date: 20171206 Docket: 4803 178815 Registry: Edmonton Between: Terry Diachuk Applicant - and - Charlene Diachuk (AKA Charlene Cameron) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Terry Diachuk seeks, among other things, renewal of a Without Notice Restraining Order against his wife, Charlene Diachuk. I granted the Without Notice Restraining Order on September 20, 2017 in Family Chambers.

The order provided that it would be reviewed in Court on October 4, 2017. [ 2 ] On October 4, 2017, Khullar J. adjourned the review application to October 12, 2017, and continued the restraining order until then. Ms. Diachuk was represented by counsel before Khullar J. [ 3 ] On October 12, 2017, the matter came before me in Family Chambers. Ms. Diachuk was in custody having been arrested on October 10, 2017, for an alleged breach of the restraining order. Ms. Diachuk’s counsel advised that she would have to cease to act because she anticipated being a witness for Ms.

Diachuk with respect to the question of whether or not she had breached the restraining order. I adjourned the matter for determination after presentation of viva voce evidence. I ordered that Ms. Diachuk be released from custody pending that hearing. I ordered that the restraining order be continued until the hearing. I ordered that Ms.

Diachuk would be entitled to have supervised access to the parties’ two children “starting at a maximum for three hours in one session per week.” The hearing with viva voce evidence was initially set for November 3, 2017, before me, but was rescheduled by agreement to November 14, 2017.

[ 4 ] On November 14, 2017, I heard viva voce evidence from Mr. Diachuk, Ms. Diachuk’s former counsel, Ms. Dawn Nelson, and Ms. Diachuk. The scheduled time was insufficient for submissions after the evidence was presented. I directed that Mr. Diachuk, who appeared without counsel, and Ms. Dargatz, Ms. Diachuk’s counsel, file written submissions and they have done so. [ 5 ] I understand that Ms. Diachuk was charged with a criminal offence in relation to her alleged breach of the restraining order. [ 6 ] I also understand that Ms.

Diachuk did not have access to the children pursuant to the order I made on October 12 because she could not pay for the supervision and Mr. Diachuk was unwilling to pay for it. [ 7 ] There are three issues to be determined: 1. Did Ms. Diachuk breach the restraining order on October 10, 2017? 2. If so what should the consequence be? 3. Should the restraining order be renewed? Did Ms. Diachuk breach the restraining order on October 10, 2017? [ 8 ] Mr. Diachuk testified that on October 10 Ms.

Diachuk who was clearly aware of the restraining order (having appeared either or person or by counsel to speak to it before Khullar J. on October 4, 2017) came to the house where Mr. Diachuk lives with the parties two children, aged 11 and 7. She was belligerent and abusive. She had no place to go and wanted a place to put her cat. Mr. Diachuk sent the children upstairs. Ms. Diachuk became aggressive. She entered the house. Mr. Diachuk called 911. The police came and arrested her. [ 9 ] Ms. Nelson testified that on October 10 she called Ms. Diachuk to arrange a meeting with her. Ms. Diachuk said she was at Mr.

Diachuk’s residence and that he would not let her leave to come to her appointment with Ms. Nelson. Ms. Diachuk said Mr. Diachuk was trying to push her out of the house. I note the inconsistency between those two statements by Ms. Diachuk to Ms. Nelson. [ 10 ] Ms. Nelson testified that she heard Ms. Diachuk tell Mr. Diachuk to keep his hands off her. Ms. Diachuk told Ms. Nelson that Mr. Diachuk had thrown her possessions out of the house. She said she could not leave without her children. She asked Ms. Nelson to call the police. Ms. Nelson told her to get herself to a safe place and to call Ms. Nelson back.

She next saw Ms. Diachuk when she was in custody. She observed bruises on Ms. Diachuk’s arms and neck. [ 11 ] Ms. Diachuk testified that despite the restraining order she has frequently stayed at the residence where Mr. Diachuk lives with the children. She estimated that she has stayed there overnight 30 times in the two months since the restraining order was issued. She testified that there have been times when he has kicked her out when she withheld sexual favours from him. [ 12 ] Ms. Diachuk testified that on Thanksgiving weekend, Mr. Diachuk wanted her to stay over and she did. They had a fight because Ms.

Diachuk smelled “meth” in the bathroom. Mr. Diachuk threw her out. He was screaming and yelling. The children were nearby and heard everything. She was on the phone with Ms. Nelson when he threw her out. [ 13 ] Ms. Diachuk testified that she has substance dependency problems in relation to drugs and alcohol. At the time she testified, she was waiting for admission to the Henwood treatment centre. She testified that she was taking a course on how to function in domestic situations. In cross-examination, she stated that she had last used drugs four days before testifying. [ 14 ] I did not find Ms.

Diachuk to be a credible witness. I am not prepared to rely on her evidence in preference to that of Mr. Diachuk because of: - the inconsistency between the two statements she made to Ms. Nelson in the phone call while she was at Mr. Diachuk’s house: that he would not let her go and that he was pushing her out of the house. - her statement that she has spent 30 of the last 60 nights at the residence where Mr.

Diachuk lives with the children which is in itself not credible and is inconsistent with her statement that she had not had significant contact with her children for months. - her admitted drug dependency and continued and recent drug use. [ 15 ] Ms. Nelson’s evidence, while I accept it, was equally consistent with Mr. Diachuk’s testimony as it was with Ms. Diachuk’s testimony. [ 16 ] I accept Mr. Diachuk’s evidence. [ 17 ] The restraining order directed Ms. Diachuk not to attend at the residence where Mr. Diachuk is living. I am satisfied that she did attend at that residence.

I am satisfied on a balance of probabilities that her attendance there was not at Mr. Diachuk’s invitation. [ 18 ] I make no comment on whether or not the evidence would prove breach of the restraining order beyond a reasonable doubt. What should the consequences be for Ms. Diachuk’s breach of the restraining order? [ 19 ] Ms. Diachuk spent about two days in custody after being arrested for breach of the restraining order on October10, 2017. I am satisfied that that is sufficient punishment for her contempt of the order of the court. There will be no further consequence, at least in these proceedings.

Should the Restraining Order be renewed?

[ 20 ] I am satisfied that the justice of the situation between these parties justifies the continuation of the restraining order. [ 21 ] There are many issues to be resolved between these parties. The existing court order relating to parenting provides that Ms. Diachuk shall have primary care of the children. I understand that is not the de facto arrangement because of the intervention of Child Services.

It appears that both parties have been content to leave the de facto arrangement in place and not make any application to the Court to either change or enforce the existing order. [ 22 ] A very significant issue which cannot be resolved in an application to enforce and renew a restraining order, but which would be addressed in a parenting application, is what parenting arrangement is in the best interests of the children. That is where the parties should focus their own attention and the attention of the court.

They should not allow the restraining order issues to divert attention from that important determination. [ 23 ] Nevertheless, I am satisfied that the continuation of the restraining order for a short period is appropriate. It shall remain in force under its current terms with the exceptions I set out below, until March 1, 2018. [ 24 ] The exceptions shall be that it will not be a breach of the restraining order for Ms.

Diachuk: a. to have supervised access to the children for a period of three hours in one session, once a week, or b. to have such access to the children as may be ordered by the Court. [ 25 ] I make no order as to who should pay for the supervision of Ms. Diachuk’s access. That question is one for an application brought to address parenting issues. Heard on the 14 th day of November, 2017. Dated at the City of Edmonton, Alberta this 06 th day of December, 2017. B.R. Burrows J.C.Q.B.A. Appearances: Mr. Diachuk appeared without counsel S. Dargatz for the Respondent