RACHEL CLARKE Applicant v. BRIAN LEWIS, 2023 NBKB 130

Clarke v. Lewis – 2023 NBKB 130 FDF-309-2023 COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: RACHEL CLARKE Applicant -and- BRIAN LEWIS Respondent Topic: Setting aside of Emergency Intervention Order (IPVI) BEFORE: The Honourable Mr. Justice Larry Landry AT: Fredericton, N.B. DATE OF HEARING: June 28, 2023 DATE OF DECISION: July 12, 2023 COUNSEL: Kelly A. Driscoll and Shealyn MacLaughlin for the Applicant, Rachel Clarke Aleacia Bennett-LeBlanc for the Respondent, Brian Lewis DECISION Landry J.:

[ 1 ] Brian Lewis filed an application to set aside or vary an order obtained by Rachel Clarke under the Intimate Partner Violence Intervention Act [1] . A hearing was held pursuant to

section 9 of the Act on June 28. [ 2 ] The Emergency Intervention Order (EIO) was granted by an adjudicative officer on June 17 and then confirmed by a judge of this court on June 20. Two days later, Brian Lewis filed his motion to set aside or vary the EIO. [ 3 ] The order provides that Mr. Lewis shall have no contact with his former partner and that he is not allowed to be on the street she is living on, in Fredericton. It also stated that all his firearms, ammunition and related documents shall be seized.

However, after the June 28 hearing, I ordered that they be returned to him. [ 4 ] An emergency intervention order is issued following a hearing where only the complainant is heard. Applications can be made by victims of intimate partner violence or on their behalf. No notice is given to the other party.

Before granting such an order, the adjudicative officer shall determine that there was in fact intimate partner violence or that it is likely to occur, and that the seriousness and urgency of the situation warrant the making of the order [2] . [ 5 ] When the order is granted, it is served on the respondent as soon as practicable [3] (in this case the same day) and it then becomes effective. In the meantime, a copy of the order and all supporting documentation is forwarded to the Court of King’s Bench for review [4] .

Once again, there is no notice to or participation from the respondent at this second stage of the process. If the judge is satisfied that there was sufficient evidence, the order is confirmed or varied accordingly. In this matter, the order was confirmed by a judge of this court without variation. [ 6 ] An emergency intervention order can be made for a period of not more than 180 days [5] .

In this case, it has a duration of 120 days unless varied or set aside by this court. [ 7 ] The only opportunity for the respondent to have his say in the process comes after he is served with the order and the order is confirmed by a judge. He then has 21 days to file his application with the court. In fact, either party can also make such an application anytime thereafter if there is a material change in circumstances. [ 8 ] This is governed by

section 9 of the Act . The onus is on Mr. Lewis to show that the emergency intervention order should be varied or set aside. Both parties can file affidavits, testify, examine and cross-examine witnesses, which they did at the hearing. The evidence before the adjudicative officer is also considered. The audio recording of the application hearing was actually played in court. [ 9 ] Rachel Clarke and Brian Lewis were in a relationship for 10 years and a half and separated in August 2022. They have no children. They have an ongoing litigation in family court and are awaiting a hearing date for the application.

The issues revolve around each party’s share in the property located at 50 Simcoe Court in Fredericton. Other monetary issues are also part of the proceedings. [ 10 ] For instance, Ms. Clarke states that she is entitled to a share of the business owned and operated by Mr. Lewis or that she should be compensated for the work she put in the business. As for Mr. Lewis, he is claiming more than 50% of the value of the home and property where the couple was living together. The property is in Ms. Clarke’s name alone, but Mr.

Lewis signed as guarantor on the mortgage and argues that him and his parents contributed a big part of the down payment and that he made other contributions towards the property. [ 11 ] Of course, this will be decided in the other family court proceeding. [ 12 ] Here, I must only decide if the emergency intervention order made following allegations of intimate partner violence, shall be confirmed, varied or cancelled.

[ 13 ] I now have the benefit of having a more complete picture of the situation, whereas the adjudicative officer and the reviewing judge only had one side of the story. [ 14 ] The questions to be answered are the following: 1) did any intimate partner violence occur or was it likely to occur before the EIO was granted? 2) did the seriousness and emergency of the situation warrant the making of the order? [ 15 ] There was no physical violence, but both parties admitted that they had an unhealthy or toxic relationship. In cross-examination, Ms. Clarke stated that once, during the relationship, Mr.

Lewis had her pinned and she bit him but otherwise, she said there was no violence in the traditional sense. [ 16 ] She relies on what she perceives as threatening or harassing behaviours coming from Mr. Lewis. Her evidence, both at the original hearing before the adjudicative officer and this one before me, convinced be that she is very anxious and afraid of what Mr. Lewis could do. [ 17 ] The main problem in this case is the fact that the house where the parties lived together, at 50 Simcoe Court, and which is now occupied by Ms. Clarke, is neighbouring the properties of the parents and sister of Mr.

Lewis, located at 49 and 52 Simcoe. Consequently, when he visits with his family, Mr. Lewis drives by Ms. Clarke’s residence. [ 18 ] When they separated, he said that he could have gone to live with his parents, where he still has a room. However, he felt that “ to try to avoid tension with the Applicant ” [6] , he had to move to his parents’ second property, in Gagetown, which is about 45 minutes from his business in Fredericton. But he goes to his parents’ home twice a day to bring his dog and pick him up after work. He also sees his sister regularly as well as his nephew and niece.

He is the godfather to one of them and the applicant is the godmother. [ 19 ] Ms. Clarke says that when she sees him driving on the street, he would often go slowly or drive in the opposite way of traffic. She feels that he is watching her. She had surveillance cameras installed on the property and showed some footage in court. [ 20 ] She also fears that Mr. Lewis will take her dog. She is very fond of this dog. The parties had two dogs while they were together, and Mr. Lewis trained them. They listen to him when he whistles. Both kept one dog after separation, but Mr. Lewis claims that both dogs are his.

They are not part of the ongoing application in family court, but he says it is his intention to file a further proceeding in Small Claims Court. [ 21 ] When he is going to his parents’ home, Ms. Clarke says that he whistles at the dog she kept, and the dog reacts. [ 22 ] Brian Lewis is denying any wrongdoing. The undisputed evidence shows that since September of last year, he never tried to contact the applicant unless it is through their respective lawyers.

He did not try to go to her place of work, nor tried to contact her parents and friends. [ 23 ] The street where they were living together is in fact a court or cul-de-sac with only six houses. There are children living there and everybody is driving slowly, according to him and his sister, who also testified. He thus admits driving slowly but adds that he tries to avoid as much as possible driving pass the applicant’s residence. He did admit driving to observe the house because a portion of the roof is not finished, and he has an interest in the house. Ms.

Clarke stated that her surveillance cameras also showed that he was driving by when she was not present, and this may be the explanation. [ 24 ] As for the dog, Mr. Lewis states that he has no intention of stealing it. Anything will go through court. He explained that a day or two before Ms. Clarke’s application before the adjudicative officer, he was at his parents’ place on Simcoe. When he was in his vehicle preparing to leave, he saw Ms. Clarke arriving. He testified being concerned about contact with the applicant, so he waited. When he decided to drive away, he thought his dog was not in the truck.

He debated, did not know what to do, and he whistled twice for his dog. He then saw his dog jump from the blind spot behind him. This was a new rental vehicle he was driving, and he said he didn’t see his dog in the truck.

[ 25 ] Although I understand that Rachel Clarke might have seen this as another way for Mr. Lewis to harass her or to try to get at her dog, this appears to be a total misunderstanding of the situation. [ 26 ] Other factors are listed in the Act and can be taken into consideration by the adjudicative officer and judges when deciding if an EIO is warranted. For instance, any mental health concerns involving the respondent and his access to firearms could be relevant. [ 27 ] Ms. Clarke explained that while they were together, Mr.

Lewis would go from high to very low and that in 2018, when he had to close his business, he was saying that it would be easier if he would not be here anymore. However, she admitted in cross-examination that he came out of it and did not remain suicidal. [ 28 ] As for the firearms, the evidence shows that this is not really an issue. Mr. Lewis is a professional skeet shooter. He shoots professionally in competitions and part of his income is coming from shooting and hunting guiding.

He goes to competitions outside the province and in the United States. [ 29 ] Rachel Clarke says that by preventing her from selling her house, filing an application to claim a big share of it and registering a certificate of pending litigation against the property, Brian Lewis is in fact trying to control her and putting pressure on her to settle. She sees that as a form of violence. [ 30 ] This is not violence as contemplated in the Act. Mr. Lewis did what he had to do to legally secure his possible interest. [ 31 ] I watched closely the video shown in court by Ms.

Clarke and I did not see anything of concern in the way Mr. Lewis was driving. [ 32 ] Once again, I believe that Ms. Clarke is quite anxious about the situation and that her perceptions of what the respondent’s intentions might be when he is driving on Simcoe Court are not reflective of reality. But on a balance of probability, I find that Brian Lewis met the onus he was facing. This is not a case where intimate partner violence has occurred or is likely to occur. Having read, heard and accepted the testimony of Mr.

Lewis, I don’t see a serious and urgent situation that would warrant the making of an order. [ 33 ] For those reasons, I am setting aside the order made by the adjudicative officer on June 17, 2023. [ 34 ] The respondent is claiming costs against the applicant. However, I was not provided with any authority allowing me to grant them. Justice Marie-Claude Bélanger-Richard, in J.S.M. v. F.Y.M. [7] , stated that

section 9 of the Act does not give to the court the power to order costs. I will follow her decision, and each party will bear their costs. July 12, 2023 Campbellton, N.B. Larry Landry, J.C.K.B.