2020 NLCA 35, 2020 NLCA 35

Cory Meadus (applicant/appellant) v. Suzanne Meadus (Peddle) (respondent) (20/17) Indexed As: Meadus v. Meadus 2020 NLCA 35 6 C.A.N.L.R. 96 Court of Appeal of Newfoundland and Labrador Welsh, White and Goodridge JJ.A. October 23, 2020

Summary: Cory Meadus sought leave to appeal a decision to dismiss his ex parte application seeking an Emergency Protection Order (EPO) against his former spouse. Held: Appeal dismissed. Goodridge J.A. (Welsh and White JJ.A. concurring): The granting of an EPO is done on an ex parte basis when necessary for immediate protection when family violence has occurred (paragraphs 4-6). The most recently alleged incident of suspected family violence occurred nine years prior to the application. There is no discretion to grant an EPO where the applicant cannot establish a serious or urgent need.

There was no error in law, and no error in application of the law, in dismissing the application summarily; leave to appeal was denied (paragraphs 7-9). Costs on a party and party basis, based on column 3 of the scale of costs were to be paid to the respondent (paragraph 10). Cases cited: Cheeseman v. Coles , 2017 NLCA 19 , 1 C.A.N.L.R. 548 Statutes considered: Family Violence Protection Act , SNL 2005, c. F-3.1, sections 5 , 12.1(1) Rules considered: Rules of the Supreme Court, 1986 , rule 55, appendix 1, column 3 Counsel: Appearing on his own behalf, the applicant/appellant; Daniel M.

Glover, for the respondent. The appeal was heard on October 19, 2020 before Welsh, White and Goodridge JJ.A.

The following judgment was filed on October 23, 2020 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A. [ 1 ] Cory Meadus seeks leave to appeal, and if granted, appeals the February 14, 2020 dismissal of his ex parte application seeking an Emergency Protection Order (EPO) against his former spouse, Suzanne Meadus Peddle. He says that the Provincial Court Judge who considered the application made errors of law or errors in application of law, by refusing to grant the order. [ 2 ] The Notice of Appeal did not provide specifics of any alleged errors.

Rather, it stated that the evidence submitted was sufficient and that the EPO should have been issued. In particular the Notice reads: There was [sic] a litany of examples of emotional harm and physical violence documented within the EPO [application] as committed by Mrs. Meadus (Peddle) that warrants the immediate enforcement of the EPO against Mrs. Meadus. Mr. Meadus is shocked the EPO was not approved! [ 3 ] In this Court, during oral submissions, Mr. Meadus added that the Provincial Court Judge erred by summarily dismissing his application without reasons. ANALYSIS [ 4 ]

Section 12.1(1) of the Family Violence Protection Act , S.N.L. 2005, c. F-3.1 , provides that leave of this Court is required before an appeal from an order made under the Act can proceed, and that the right of appeal is limited to a question of law or jurisdiction: 12.1

(1) With leave of a judge of the Court of Appeal, an appeal from an order made under this Act may be made to the Court of Appeal on a question of law or jurisdiction. [ 5 ] The approach to determining leave under

section 12.1 was discussed in Cheeseman v. Coles , 2017 NLCA 19 : [20] … [T]he approach to determining leave under

section 12.1 of the [ Family Violence Protection Act ] is to determine: (

i) whether it appears that the issue on appeal is one of law or jurisdiction; and, if so (ii) whether the appellant can show that either: (

a) he or she has a reasonably arguable case for success on the appeal; or (

b) the issue is of general importance to the administration of justice. [ 6 ] An EPO can be granted on an ex parte basis in urgent situations to provide immediate protection when family violence has occurred.

Section 5 of the Family Violence Protection Act defines the authority and discretion of a Provincial Court Judge to grant an EPO ex parte : 5.

(1) A judge, on the application of a person referred to in subsection 4(1) made in the prescribed form and manner, may make an emergency protection order without notice to another person where the judge determines on a balance of probabilities that (

a) family violence has occurred; and (

b) by reason of seriousness or urgency the emergency protection order should be made without delay to ensure the immediate protection of the applicant who is at risk of harm or the property that is at risk of damage.

(2) In determining whether an emergency protection order should be made, the judge shall consider, but is not limited to considering, the following factors: (

a) the nature of the family violence; (

b) the history of family violence by the respondent towards the applicant and whether it is more likely than not that the respondent will continue the family violence; (

c) the existence of immediate danger to persons or property; and (

d) the best interests of the applicant and an affected child.

(3) For the purpose of paragraph (2)(c), immediate danger to persons or property may be found to exist notwithstanding that the applicant has been forced to vacate his or her residence as a result of the family violence of the respondent and has found temporary shelter elsewhere. [ 7 ] In Mr. Meadus’ application and the affidavit evidence he filed as support, there was no recent family violence alleged; there was nothing urgent that could justify the granting of an EPO ex parte . The most recent alleged incident of suspected family violence affecting the children was nine years prior to the application. A Provincial Court Judge, by virtue of

section 5 of the Family Violence

Protection Act , does not have discretion to grant an EPO where the applicant cannot establish a serious or urgent need. In the circumstances – no serious or urgent need – the Provincial Court Judge had no choice but to dismiss the application. There was no error in law, and no error in application of the law, in dismissing the application summarily. [ 8 ] The children were ages 18, 20 and 22 at the time of the application, and the youngest turned 19 the month following the application. The children have resided with Ms.

Peddle since a June 29, 2011 court order of the Family Division of the Supreme Court of Newfoundland and Labrador granting her sole custody and limiting Mr. Meadus’ contact to supervised visits. The EPO application in Provincial Court and the written submissions to this Court sought a reversal of that parenting order. It is apparent from those written submissions, and the absence of any foundation supporting the EPO application, that Mr. Meadus was using the Family Violence Protection Act improperly, in a failed attempt to reverse the existing parenting arrangements. DISPOSITION [ 9 ] Mr.

Meadus has not shown that he has a reasonably arguable case for success on appeal, or that the issue he raises is of general importance to the administration of justice. Applying the test set out at paragraph 20 of Cheeseman , I would deny leave to appeal. [ 10 ] I would order that Mr. Meadus pay Ms. Peddle’s costs on a party and party basis, based on Column 3 of the scale of costs. Appeal dismissed.