K.R.C. v. N.E.C., 2021 BCPC 272

Citation: K.R.C. v. N.E.C. 2021 BCPC 272 Date: 20211104 File No: 18189 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.R.C. APPLICANT AND: N.E.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Applicant: A. Marr Counsel for the Respondent: J. Mariona Place of Hearing: Kamloops , B.C. Dates of Hearing: June 3, September 10 and October 1, 2021 Date of Judgment: November 4, 2021 [ 1 ] This is an application by K.R.C. to set aside a protection order obtained by N.E.C. on February 23, 2021. N.E.C. opposes this application and feels the protection order is still required. [ 2 ] The protection order was obtained on an ex parte basis relying on evidence by N.E.C. K.R.C. claims that N.E.C.'s evidence was not truthful and does not support a protection order.

I have reviewed that transcript and considered it together with the vive voce and affidavit evidence before me. [ 3 ] K.R.C. says that N.E.C. has not met the burden of showing that the evidence upon which the protection order was based was not false, misleading or incomplete. Therefore I must assess whether such an order would have been made in the first instance based on the evidence before me on this application. [ 4 ] I find that K.R.C.'s conduct since the separation has been on occasion quite atrocious.

The foundation of that separation is the sexual violation of K.R.C. by N.E.C. for the pleasure and benefit of her clandestine partner, M.S. K.R.C.,'s subsequent conduct can best be described as backlash for this conduct. That does not justify it by any means, but it does set it in context. [ 5 ] In addition, when I consider the evidence of N.E.C. not only to support the production order but also in response to this application, I find that she has consistently exaggerated and mischaracterized circumstances.

The filter she placed on her evidence to gain and maintain the protection order rendered much of her evidence misleading, incomplete and unreliable. [ 6 ] Against this backdrop is the separation agreement the parties reached on one hand, and possible criminal proceedings commenced with respect to the sexual violation on the other hand. That they entered into a separation agreement suggests that they are willing on some level to co-parent.

That they cannot maintain respectful conduct shows the struggles they are both still having. [ 7 ] It will serve no purpose to belabour the numerous instances of disrespectful and inappropriate behaviour both parties have exhibited. However, when assessing whether N.E.C. met the burden of fulsome disclosure when she testified ex parte before Judge Armstrong, I find that she fell far short.

The following circumstances are only examples of the many instances both parties testified about. [ 8 ] N.E.C. alleged that there was a history of family violence by K.R.C. varying from surveillance, to choking and slapping, to hitting her with a thrown phone on the night of the separation. The surveillance was actually by a phone-locating app both parties and K.R.C. had on their phones by mutual agreement. It was not new or secret.

N.E.C. believes K.R.C. persists in tracking her using a QR code she believes he put on her phone, and accessing her social media accounts to this day. [ 9 ] The choking was, according to K.R.C., at N.E.C.’s behest as part of the sex videos she was making for M.S. without K.R.C.’s knowledge or consent. [ 10 ] As for the bruising to her face, the photos from the night of this alleged assault do not show any marks to her face that could represent subsequent bruising. While one would not likely expect a bruise to reveal itself so quickly, there is no mark of any kind and no swelling.

N.E.C.’s friend, who happens to be M.S.’s sister, also testified that K.R.C. locked N.E.C. in the garage that night. That was untrue. [ 11 ] N.E.C. also alleged K.R.C. hacks her computer, cell phone and social media accounts. She testified that he is very computer savvy. K.R.C. is a technician with [omitted for publication] but also fixes computers for a hobby. It certainly seems that he has the technical ability to get into her accounts and devices. [ 12 ] K.R.C. testified, however, that the social media account she is referring to is a shared one.

He did not have an account of his own and used hers by agreement. N.E.C. first denied this and then conceded that she just accepted that he would go into her accounts. When he suggested she change her passwords, she took this as a threat that he would continue to access her accounts after she left. [ 13 ] K.R.C.’s explanation was disingenuous. He ought not to have accessed her accounts after they separated, whether she changed the password or not. On the other hand, N.E.C. took advantage of K.R.C.’s absence from his home on one occasion and also accessed his computer without his permission.

It is difficult to fathom how she thought this was justified in view of her complaints about K.R.C. [ 14 ] More unfathomable is that she sought K.R.C.’s assistance in setting up a [omitted for publication] account of her own. N.E.C. said she did not think K.R.C. would compromise his employment at [omitted for publication] and, in any event, he sent a different technician to do the work.

This is incomprehensible considering the various technological assaults N.E.C. claimed K.R.C. did and was still doing. [ 15 ] N.E.C. told the court she had to change her phone three times after the separation because K.R.C. was tracking and hacking her phone. The first phone she purchased because of this suspicion on her part. The second phone was purchased after she dropped her new one in water. The third phone was given to her. She deliberately misled the court on both occasions. [ 16 ] N.E.C. related an instance on Halloween where she dropped the children at K.R.C.’s home at his request.

N.E.C. said K.R.C. had placed a tombstone in his yard that said something to the effect of “here lies the whore”. In fact, it said something to the effect of “here lies Miss Piggy and Jim Henson”. K.R.C. concedes it was in poor taste as it was intended to reference N.E.C. and M.S. It was immature, inflammatory and not constructive.

[17] In fact, N.E.C. admitted in cross examination that she had not even seen the tombstones. She modified her evidence to say that hetold the children it was for their “whore mother”. When asked why she did not disclose to the court that K.R.C. had explained thetombstones to represent a vulgar joke, she said that she was hysterical that day. She said that it does not change the fact he called her awhore in front of the children. I find that her evidence is too unreliable to be satisfied that he did say that in front of the children. [18] In short, N.E.C. deliberately misrepresented the facts to Judge Armstrong.

That does not mean to say she was not distressed bythe wildly fluctuating nature of communications with K.R.C. Nor does it mean to say he did not do to some degree some of the things shecomplained of. However, her testimony is not reliable given these misrepresentations not only in her affidavit and to Judge Armstrong,but to this court. She did not meet the burden required of her at the ex-parte hearing. [19] The test before me now is set out in the decision of Judge Bakan in P.S. v.

G.J., 2020 BCPC 149 , 2020 B.C.P.C. 149 atparagraphs 27 and 28: [27] In the Honourable Judge Woods' judgment, he discusses the test in paragraph 12 as follows: Does the evidence produced on the application to set aside the protection order show, on the balance of probabilities, that the evidenceproduced on the without notice application for a protection order was false or incomplete?

If that is shown, would the without noticeapplication have been refused if the complete and truthful information had been placed before the court? [28] In the Honourable Judge Lee's judgment he states: [30] An ex parte order should be set aside if the evidence put in support of the order was false, misleading or incomplete unless thecourt is satisfied that the order would have been granted in any event had truthful or complete information been provided. [20] I find that if the facts as presented to Judge Armstrong were true, K.R.C.’s conduct would constitute family violence.

However,those facts were not true or at least very incomplete. N.E.C. has since conceded that there was no history of family violence, and that herphones were twice replaced for reasons unrelated to K.R.C. “stalking” her. Cross examination revealed that there were nostalgic andpleasant communications since the separation that belie her assertion that his harassment has been unrelenting. She also concedes thatshe does not have proof of his threats. [21] Would Judge Armstrong likely have given N.E.C. the protection order she sought if a more honest and accurate representation ofthe facts had been made?

K.R.C. concedes his behaviour at the beginning of the separation was vile and inappropriate. He acknowledgeshe has made rude and vulgar comments to and about N.E.C. However, the evidence before me does not support a claim of familyviolence, whether physical, emotional or financial. I find Judge Armstrong would not have granted the ex-parte protection order if N.E.C.had been forthright and gave true, complete information at the ex-parte hearing. [22] K.R.C. and N.E.C. would benefit from some firm guidance in the form of an appropriate conduct order.

K.R.C. must dig deep forthe emotional maturity demanded of him not to be sarcastic, malicious or inappropriate. N.E.C. needs to reflect on her own conduct. Shecannot expect K.R.C. to “get over” the violation. She cannot expect that M.S. will ever be welcome at exchanges, in video calls or atchildren’s events when K.R.C. in present. [23] I am terminating the protection order and replacing it with a conduct order on the following terms: 1) The parties shall:

a) put the best interests of the children before their own interests;

b) encourage the children to have a good relationship with the other parent and speak to the children about the other parent and thatparent’s partner in a positive and respectful manner; and

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism,communication or argument in front of the children. 2) The parties shall not:

a) question the children about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with the children any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to the children. 3) The parties shall encourage their respective families to refrain from any negative comments about the other parent and his or hernegative comments about the other parent and his or her extended family, and from discussions in front of the children concerning familyissues or litigation. 4) N.E.C. shall not permit M.S. to be present during any exchanges or electronic communications between K.R.C. and the children. [24] There are significant financial consequences that can flow from a breach of the conduct order.

The parties are urged in the bestinterests of the children to ensure they remain in compliance and co-parent as constructively as they have agreed.

_________________________ S.D. Frame Provincial Court Judge