MK v CF, 2021 ABQB 194

Court of Queen’s Bench of Alberta Citation: MK v CF, 2021 ABQB 194 Date: 20210312 Docket: 2003 19355 Registry: Edmonton Between: MK and CK Applicants - and - CF Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] This is a review of an ex parte restraining order.

The issue is whether an acknowledged one-time threat of bodily harm, viewed in its extramarital-affair-revelation context, is sufficient for the order to be confirmed and extended. [ 2 ] I find that it is not and that a viva voce hearing is required to determine whether other events, cited in support of the ex parte application and disputed by the respondent, occurred and, if so, whether the order should be confirmed and extended i.e. in light of all of

the evidence. B. Background [ 3 ] In November 2020, a couple (H and

W) obtained the order against a woman (W2) whose husband (H2) had had an affair with W. W2 had come to H and W’s home to, in her words, “speak to [W] to confront her about the emotional issues I was dealing with surrounding the affair.” Some details of that attempted confrontation are disputed. What is not disputed is that W2 did not end up seeing W but did say (per W2) “words to the effect that if I ever saw [W] again I would knock her lights out.” [ 4 ] Over the course of fall 2020, and according to W, other things happened that eventually moved W and H to apply for the restraining order against W2.

W2 disputes that those things happened. [ 5 ] At the review hearing, W asked that the order continue on the same (standard restraining order) terms, for one year. W2 asked that the order be set aside (not warranted for the conduct acknowledged) or, alternatively, replaced by a mutual no-contact order. [ 6 ] In response to my reaction that, with the disputed evidence, a viva voce hearing would be necessary, W’s counsel argued that the acknowledged initial encounter was sufficient i.e. for the order to be confirmed and extended.

W2 disagreed. [ 7 ] The parties did agree that I could decide that narrow point and either confirm and extend the order as requested by W or, if no confirmation and extension, direct the matter to a viva voce hearing i.e. so that findings could be made on the disputed events and the fate of the order decided on the basis of all the evidence. (W2’s counsel again suggested mutual no-contact orders as an option.) C.

Analysis [ 8 ] Veit J. outlined some key restraining-order principles in Boychuk v Boychuk , 2017 ABQB 428 : - … in relation to restraining orders in a domestic situation, it is not necessary for applicants to establish an objective fear for their safety .

On the contrary, imposing such a pre-requisite, courts only encourage citizens to lie, or at least grossly exaggerate, the reasons they feel entitled to a no-contact order; - a superior court in Alberta is entitled to grant a no contact restraining order when it is satisfied that the respondent has repeatedly communicated with the applicant, knowing that such communication was unwelcome, or recklessly without ascertaining the wishes of the person with whom communication is made ; - because a restraining order arises from a different set of circumstances than an Emergency Protection Order or a Queen’s Bench Protection Order, such an order does not ordinarily stigmatize the respondent. [para 52] [emphasis added] [ 9 ] On review of a restraining order (as here, after W2 had been served with the order and filed an affidavit providing her version of events), a key factor is whether the order is still necessary .

In some circumstances, a threat or other alarming behaviour may spark an initial fear or alarm which dissipates , to the point that the order is no longer necessary. A key feature here is the possible one-time nature of the alarming behaviour .

Should the behaviour be regarded as a one-off reaction to unexpected or unusual circumstances , with no material risk of repetition or escalation ? [ 10 ] Here I cite ED v JS , 2020 ONSC 1474 , where Desormeau J. addressed this factor (among others): A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement : Purewal v.

Purewal, 2004 ONCJ 195 . … [para 224] [emphasis added] [ 11 ] Veit J. explored the phenomenon of a single and “not intended to be taken seriously” threat in Fuller v Cryer , 2010 ABQB 622 (application for a Queen’s Bench protection order): The evidence establishes that there was no immediate, or any reasonable apprehension of future, danger to Ms. Fuller. In particular, the threats yelled by Ms. Cryer the day after her brother’s burial were, in the context in which they were spoken, merely emotional venting . Indeed, Ms.

Fuller’s own aunt acknowledged that she did not take the threats seriously. … There was then some shouting and yelling between the two women who were in close proximity to one another. Ms. Fuller and her aunt, Dora Roy, testified that Ms. Cryer screamed that she would kill Ms. Fuller and all her family . Ms. Roy testified that she did not take this threat seriously. … … Ms. Fuller and Ms. Roy were afraid that Ms. Cryer would try to push her way into the residence; they called the police .

Understandably, it took the police some time to arrive at the Fuller residence; whether it was 5 minutes or 45 minutes is not clear, but it was sufficient time for Ms. Cryer to drive one of her nephews to some other location and to return to the Fuller residence to await the police . Not only is there nothing in Ms. Cryer’s history or actions that suggest an intention that the threats should have been taken seriously, Ms. Cryer’s actions on the day in question in waiting for some considerable time for the police to arrive at the Fuller

residence argue against the making of any serious threat . [paras 8, 18, 19, 20 and 50] [emphasis added] [ 12 ] Pugsley J. explored a somewhat similar phenomenon (out-of-character actions) in Stave v Chartrand , 2004 ONCJ 79 : A year ago, Ms. Stave and Mr. Chartrand found themselves in a very stressful situation. Their long-term spousal relationship was ending. Under such circumstances, the words spoken and actions taken by both parties were analysed by them with abnormal precision. Foolish words were spoken by persons whom the applicant reasonably believed were allies of the respondent.

Under normal circumstances, Ms. Stave would probably have shrugged off Ms. Chartrand’s crude comments as reflecting more upon the speaker than the listener. Needless to say however, these were not normal times . Similarly, and on an arguably higher level, the highly emotional dispute involving the family dogs caused both parties to act in ways that I find were uncharacteristic of their normal sensible behaviour .

Although the applicant subjectively felt threatened by this activity and the statements of the respondent with respect to the property dispute, objectively I find as stated above that she has not met the onus upon her on a balance of probabilities to convince the court that an order is required under

section 46 of the Family Law Act . Accordingly, the application is dismissed. [para 28] [emphasis added] [ 13 ] I find that a similar approach is warranted here, with W2’s outburst sparking an initial concern but one which, in context and in the all the circumstances, cannot be seen as grounding a continuing fear of W2 (even subjective), at least on the basis of that outburst alone. [ 14 ] I accept that W was initially alarmed by W2’s threat, on August 24, 2020. In part, it motivated her to call the police, who contacted W2 and directed her to have no further contact with W.

It also sparked W to retain a lawyer, who sent a letter to W2 the same day, stating (in part): … I am instructed by [W] to make a formal request that you cease any and all communication and contact with [W and H], both directly and indirectly through email, cell phone and contacting either party at their respective places of employment. … … if you are unable to restrain yourself from contacting [W], I have received instructions to file an Application for a Restraining Order.

I trust the above to be in order and hope the latter [application] is not necessary. [emphasis added] [ 15 ] Critically, W did not apply for a restraining order on the heels of this encounter or at any point until late November 2020 (i.e. three months later), after the other (disputed-by-W2) events i.e. she and H were apparently content to rely on the warning-by-police and lawyer’s letter. [ 16 ] I infer that they were also counting on the passage of time to soothe, or help soothe, W2’s emotions. [ 17 ] On the subject of those emotions, the evidence confirms W2’s recent-revelation position i.e. that she had only learned of the scale of the W-H2 affair shortly before the August 24, 2020 encounter.

Both parties (W and W2) acknowledge a mid-May 2020 discussion between them about the affair.

W2’s evidence is that W “indicated that there had only been one encounter with [H2].” W’s evidence of that conversation is that “[W2] asked me questions [about the affair] and I answered all of them as [H2] was not providing her with any answers.” W did not give evidence that she described the scale of the affair or at least anything at odds with W2’s one- encounter understanding. [ 18 ] W2 gives uncontradicted evidence of H contacting her, unprompted, on August 20, 2020 to “[provide] me with the details of the affair.” W’s evidence acknowledges intimate encounters with H2 on a scale markedly different than a single encounter. [ 19 ] On this evidence, I am satisfied that W2 only learned of the larger scale of the affair on August 20 i.e. shortly before the encounter at the W-H house on August 24. [ 20 ] On this basis, I accept W2’s evidence that “[learning of the affair’s actual scale] was understandably upsetting to me and [it] motivated my decision to try and contact [W] on August 24 th , 2020.

But for the uninitiated call from [H], I would not have contacted [W].” Later in her affidavit, W2 states “I was understandably upset to find out that [W] had a longstanding affair with my husband. ” [ 21 ] W2’s evidence is that her “lights out” comment “was not intended to be taken seriously … an objective reasonable person would see it as an expression of frustration considering the emotionally charged issues involved .” As noted, I have accepted that W was actually alarmed by W2’s comment.

But our focus is whether that alarm persisted after the front-door encounter and, in particular, after the police warning and lawyer letter later on August 24 th . [ 22 ] Viewed differently, the “risk assessment” issue is whether, in all the circumstances here, W had a reasonable, or any, expectation that W2 would act on her “light outs” comment or otherwise escalate her alarming behaviour . [ 23 ] I note here that W’s affidavit (sworn November 24, 2020) provides no evidence of any lingering sense of shake-up, fear or other negative emotion still stemming from the August 24 th encounter .

Recall, again, that the restraining order was granted, on November 26, 2020, ex parte and in the light of various other events reported by W and now disputed by W2. [ 24 ] Nothing in the record reflects any history of violence or other anti-social conduct by W2 i.e. preceding these matters. [ 25 ] Another relevant factor is that, before the revelation of the affair, these couples and their children had a close and longstanding friendship, unfortunately now fractured. D. Conclusion

[ 26 ] Focusing on W2’s statement that she would “knock [W’s] lights out” if she saw her, and recognizing the context in which that statement was made -- on the heels of W2 learning that her husband and W had had a long-running (multi-year) affair in the middle of a longstanding friendship between the two families, and emphasizing that W and H did not seek a restraining order on the heels of the key encounter (only doing so three months later after various other events, which W2 disputes), I find that W’s alarm immediately following the encounter has dissipated, to the point that, on its own, it can no longer anchor the restraining order. [ 27 ] In other words, I am not satisfied that, at present, W remains even subjectively fearful of W2, based on the latter’s “lights out” statement more than six months ago. [ 28 ] Alternatively, even if W continues to be fearful and alarmed by that statement, I am not satisfied, in all the circumstances, that that is sufficient, on its own, to anchor the restraining order.

The key here is insufficient evidence of a material risk of W2 acting on her comment, which I see as an unfortunate but understandable one-time eruption triggered by the described revelation. [ 29 ] Accordingly, I decline to grant the requested one-year extension of the restraining order on the basis of the “lights out” comment alone.

If W and H continue to believe that the order should be so (or otherwise) extended, the next step is a viva voce hearing, at which the parties can cross-examine each other on the disputed evidence and a justice can decide which, if any, of those alleged events occurred and, in turn, whether extension of the order is warranted. [ 30 ] I decline to direct mutual no-contact orders, with W and H not consenting and with no evidence of any conduct on their part that might warrant a no-contact order in W2’s favour. [ 31 ] If a viva voce hearing is required, the parties shall submit a draft oral-hearing order (in line with our Court’s standard approach to such hearings, with limits on the number of witnesses, time limits for examinations, etc.).

If they cannot agree, I invite their separate proposals for such an order. I will approve the order or provide alternative or additional directions, as necessary. [ 32 ] Pending the outcome of a viva voce hearing and subject to other court order, the existing order shall remain in place. [ 33 ] I thank both counsel for their helpful submissions. Heard on the 26 th day of February, 2021. Dated at the City of Edmonton, Alberta this 12 th day of March, 2021. M. J. Lema J.C.Q.B.A. Appearances: Joanna Davidoff TC Family Law Group for the Applicants Kent J. Teskey, QC Pringle Chivers Sparks Teskey for the Respondent