R. v. F.K. Date:, 2016 BCPC 53

Citation: R. v. F.K. Date: 20160128 2016 BCPC 0053 File No: 62099-2-KC Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. F. K. RULING RE

SECTION 810 PEACE BOND OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: M. Vayeghan, Articled Student Appearing on his own behalf: F.K. Place of Hearing: North Vancouver , B.C. Date of Hearing: January 28, 2016 Date of Judgment: January 28, 2016

[ 1 ] THE COURT: This is an application for a peace bond against F.K. The peace bond Information alleges that his former wife, F.V., has reasonable grounds to fear him as a result of an incident that occurred between July 14th and 15th of 2015. [ 2 ] The incident in question was a telephone call the Crown alleges was made by Mr. K. to Ms. V.'s mother in Iran in which he said, "Tell your daughter she has two weeks to get divorced from her husband or I'm going to kill her. I'm a Canadian, I will only go to jail for six years, and I'm okay with that." [ 3 ] Ms.

V. says she was contacted immediately by her mother who asked if she and her daughter were okay and told her of this telephone call. The daughter referred to is also the daughter of Mr. K. At the time Ms. V. was in Canada and Mr. K. was in Canada. She was fearful as a result and went to the police. [ 4 ] She said that Mr. K. has not had any contact with her, although he had contacted her brother, and she said that she continues to fear him. He is apparently abiding by his bail and she believes that he will comply with any other orders to stay away from her.

She said she just wants to be protected and live in peace. [ 5 ] The background to all of this is that they married without ever meeting in person in 2005 in Iran. She later came to Canada and was sponsored by Mr. K. as his wife. In 2008, she became a Canadian citizen and, in January of 2010, their child was born. [ 6 ] She said that in the beginning the relationship was a reasonable one, but then Mr. K. began verbally abusing her.

She had been hopeful that the arrival of the child would change the nature of his conduct towards her, but she said that as a result of his kicking her while she was breastfeeding, she left and took the child and they went to Iran. [ 7 ] She said she discussed what was going on in her marriage with her family in Iran. She said that she and Mr. K. had talked about getting divorced, but that Mr. K. had threatened to kill her and any new partner if she left him. [ 8 ] She returned to Canada in August of 2012 and she says that, on August 15th of 2012, there was an incident.

In her testimony, she said that he wanted to have sexual relations but she did not. He slapped her and tried to choke her and, after consuming alcohol, again attempted to force her to have sex. That incident was reported to the police and, as a result of conversations both with Mr. K. and others, Ms. V. was persuaded not to go ahead with the charges. [ 9 ] At some point, she commenced proceedings in Supreme Court in British Columbia. We have only an affidavit, but it appears that a Family Law Act statement of claim was filed in which she was the claimant.

So, during this period of time, in other words, between the incident in mid-2012 and mid-2014 when she returned to Iran again, she was proceeding with a Family Law Act proceeding in the Supreme Court. [ 10 ] In that affidavit, she says she strongly supports their child, a daughter, having a good relationship with her father and she was supporting him in having parenting time with the child. [ 11 ] In 2014, she returned to Iran with the child. She stayed from August to January 2015. She said that she just wanted to get away with her daughter, that she and Mr.

K. had been talking about divorce, and that he had at that time agreed to dissolving their marriage in Iran. [ 12 ] Ms. V., at that time, was involved with a man who is now her husband. They married in May of 2015. She said that in April, Mr. K. called her, her new husband, and her new husband's father. She talked about the conversation she had with him and said it was a very, I will use the word, "unpleasant" conversation. When she returned to Canada, she blocked Mr. K. on her phone and Facebook. Mr.

K. admits that during the spring of 2015, he contacted her new husband and that they swore at each other. [ 13 ] So that is all of the background to this event which forms the basis for the application for a s. 810 peace bond. [ 14 ] Mr. K. gave evidence. His evidence was confusing. He admits that he contacted her mother at the relevant time, but he says that her mother was sympathetic to his position. She expressed to him how ashamed she was of what her daughter had done, and told him that no one in the family was speaking to Ms. V. any further. Mr.

K. also said that previously her family was not talking to her as a result of her conduct. [ 15 ] There are a number of issues that Mr. K. says have caused Ms. V. to make this false allegation against him about this telephone call. He denies that there was any history of violence between them. He says that everything was fine until 2012 when, if I understood his evidence, there was the allegation of the assault which he says was also untrue. As we know, there were proceedings started at some point prior to January 29th, 2013.

So it would appear they must have been commenced in late 2012 or 2013 in the Supreme Court of British Columbia. So that one external document certainly is consistent with what Ms. V. has said was the course of their relationship. [ 16 ] Ms. V. says that when she returned to Iran in 2012 and made inquiries because she wanted to get divorced, she found out that the marriage certificate that had been relied on was not valid. Mr. K. says indeed it is a valid marriage certificate which means that Ms. V. under Canadian Law, and I am pretty sure under Iranian law, would be a bigamist.

In other words, that she has gone off and married another man while still legally married to Mr. K. [ 17 ] Frankly, this just makes no sense whatsoever. What is most inconsistent is that Mr. K. insists that Ms. V. is still legally married to him, but his only steps taken are to have notified Immigration Canada. Of course, this would be very relevant to his ability to obtain a divorce from her and, in all the circumstances, one would think he would be keen to obtain a divorce from his wife given what he says is now a second false allegation against him. [ 18 ] THE INTERPRETER: Your Honour, could you please repeat?

[ 19 ] THE COURT: Oh. [ 20 ] THE INTERPRETER: I could not catch the last part. [ 21 ] THE COURT: I said one would expect him to be seeking a divorce given that Ms. V. has now, according to him, made two false accusations in criminal court against him. [ 22 ] Mr. K. gave evidence that the two of them were at some point living in Toronto. The best I could understand his evidence on this point was that somehow Ms. V. managed to get to court in Vancouver either electronically or in person and obtain a custody order for their child while they were living together in Toronto.

This is directly contrary to the affidavit that she filed in New Westminster Supreme Court in March of 2015. [ 23 ] Mr. K. says that Ms. V. made this false allegation to justify getting rid of him. However, by July of 2015, she had no reason to want to "get rid of him" or justify getting rid of him. According to him, she had already been shamed in the Iranian community and rejected by her family entirely. She had already remarried. It does not make sense that she would need any reason to make a false accusation to justify getting rid of Mr. K. [ 24 ] According to him, she already had custody of their child.

It would appear that his conduct toward her is not something that is affecting her facilitating parenting time with him. Indeed, his own witnesses talked about how Ms. V. has been contacting them to arrange and facilitate Mr. K.’s parenting time. [ 25 ] If Ms. V. wanted to make a false allegation against Mr. K., it is unlikely that she would make an allegation which involved a witness who could not be produced to testify. She simply could have said that he threatened her directly. [ 26 ] The other ground that Mr. K. says the court should consider is that Ms. V. is actually not afraid of him.

He called witnesses who said that she told them she was not afraid of him, although one witness testified that she told him Mr. K. had threatened her new husband over the phone. [ 27 ] Ms. V. was an impressive witness in the sense that her emotional state was consistent with the history of violence she had testified to. She testified under oath that the call he made to her mother frightened her and that, although he had not tried to contact her contrary to his terms of release, she remains fearful that he will do so if there is not an order in place. [ 28 ] Mr.

K. is alleged by the Crown to have had a clear motive to have made the call he did, in which he threatened Ms. V. if she did not divorce her new husband. His evidence on this point was inconsistent. At first, he said he was not angry about the new relationship and more particularly that he was not angry that his wife, who was still legally married to him, had married again. He made a previous call, during which, on his own evidence, he was angry with her new husband, and swore at him.

He also acknowledges that he was speaking to her mother at the relevant time. [ 29 ] As the Crown has pointed out, they need only establish on the balance that Ms. V. is fearful of Mr. K. and that fear is based on reasonable grounds. I accept Ms. V.'s evidence that this call occurred and that she continues to be fearful. [ 30 ] I do not accept Mr. K.'s evidence about these various events.

It does not have the ring of truth, it is inconsistent with human nature, and it does not make sense or have the ring of truth in the context of all of the events as a whole. [ 31 ] I will impose the s. 810 peace bond. [ 32 ] The terms will be that Mr. K. will -- sorry, I take it you are seeking 12 months, counsel? [ 33 ] MR. VAYEGHAN: Yes, Your Honour. [ 34 ] THE COURT: All right. [ 35 ] It will be for a period of 12 months in the amount of $500 without deposit, without surety. [ 36 ] I am going to suggest the terms and I will hear from Crown and Mr.

K. about them, but the terms I would suggest are that he keep the peace and be of good behaviour. [ 37 ] He have no contact direct or indirect with F.V., except in accordance with an order under the Family Law Act made by a court of competent jurisdiction, and he is not to attend to any residence at which he knows F.V. to reside or any place of employment or place of education at which he knows Ms. V. to work or attend, except in accordance with the terms of an order made under the Family Law Act by a court of competent jurisdiction. [ 38 ] Now, Mr.

Vayeghan, do you want any other terms included in this -- [ 39 ] MR. VAYEGHAN: If I can have a moment to consult with my colleague? Your Honour, I would also ask for a no-weapons condition. [ 40 ] THE COURT: Yes. [SUBMISSIONS RE CONDITIONS] [ 41 ] THE COURT: So, Mr. K., I am going to include another term which is appropriately included which is that you are not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada [ 42 ] Mr. K., what the Crown has asked me to make clear to you is that you cannot contact Ms. V. either by phone or email or text

unless it is set out in a Family Court order and you cannot contact her or send messages to her through your friends or acquaintances. So one of the things we do not have is what orders are outstanding in your Supreme Court matter with respect to the child. [ 43 ] F.K.: It is revised, Your Honour. The family matter was pending until this matter is resolved. [ 44 ] THE COURT: Well, there may be inconsistencies between what is ordered there and what I have ordered today, but I take it neither Ms.

V. nor you have brought a current order to court? [ 45 ] F.K.: No, we brought. [ 46 ] THE COURT: You have a current family order about access to your child? [ 47 ] F.K.: Yes, I have it, Your Honour. [ 48 ] THE COURT: Could I see it? [DISCUSSION RE CURRENT FAMILY COURT ORDERS] [ 49 ] THE COURT: So, Mr. K., my order will stay in place until you -- so that means that if you are -- how are you contacting Ms. V. now to see your child? [ 50 ] F.K.: You are telling me that directly/indirectly, I have no right.

I do not know how to do it. [ 51 ] THE COURT: You are going to need to go and speak to a Family Justice Counsellor about what is going on in your family matter. [ 52 ] F.K.: So now I want to -- and talk to somebody, but they said they have -- this court has to be finalized before family matter would go -- proceed.

So now, yes, I imposed this one and these -- 810 is imposed, how would I go make my -- [ 53 ] THE COURT: I am just going to change the order. [ 54 ] The contact, Madam Clerk, will be amended to read, "You are to have no contact direct or indirect with F.V. save and except through a Family Justice Counsellor or legal counsel for the sole purpose of dealing with any issues under the Family Law Act or in accordance with the terms of an order,” et cetera, same as before. [ 55 ] F.K.: What -- can it be a friend -- through a friend? [ 56 ] THE COURT: No, a Family Justice Counsellor or a lawyer.

So you can go to a Family Justice Counsellor. They can help you sort out what is going on in your family matter and make arrangements for you to see your daughter. [ 57 ] F.K.: Okay. [ 58 ] THE COURT: Okay, but other than that, you cannot contact Ms. V. any further. [ 59 ] F.K.: She called me. I did not -- I will never contact -- [ 60 ] THE COURT: Mr. K., if you contact her contrary to this order, you will be arrested and taken to jail. [ 61 ] F.K.: Yes. [ 62 ] THE COURT: You can contact her by going to a Family Justice Counsellor and taking it from there.

They can assist you. [ 63 ] THE INTERPRETER: The details of the 810, does he have to also sign? [ 64 ] THE COURT: Yes, he will get that document downstairs now. [ 65 ] F.K.: So the weekly -- the signature that I am making is going to continue? [ 66 ] THE COURT: I do not know what you are referring to. Are you reporting on a bail? [ 67 ] F.K.: Yes. [ 68 ] THE COURT: You do not have to report anymore. You are only going to be bound by this order. [ 69 ] F.K.: Okay. [RULING CONCLUDED]