2023 MBKB 164, 2023 MBKB 164

Date: 20231121 Docket: FD20-01-25324 (Winnipeg Centre) Indexed as: E.T.S. v. S.J.B. Citation: 2023 MBKB 164 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: E.T.S., ) GISELE CHAMPAGNE ) for the applicant/respondent Applicant/Respondent, ) ) DANIEL MARC MINUK -and- ) for the respondent/petitioner ) S.J.B., ) ) JUDGMENT DELIVERED: Respondent/Petitioner. ) November 21, 2023 MIRWALDT J. [ 1 ] On October 26, 2022, Judicial Justice of the Peace (“JJP”) Young granted a “without notice” Protection Order to the applicant, E.T.S. pursuant to The Domestic Violence and Stalking Act , C.C.S.M. c.

D93 (the “ Act ”), against her former partner, the respondent, S.J.B. On November 14, 2022, S.J.B. filed a Notice of Application to set aside, vary or revoke the order. The matter was heard by me on May 11, 2023, with submissions heard on May 31, 2023. [ 2 ] For the reasons that follow, I have concluded that S.J.B.’s application should be denied. I have reached this conclusion because I am satisfied that the Protection Order was properly issued by the JJP.

Further, I find that the evidence has demonstrated that the Order was and is necessary to protect E.T.S. from further acts of stalking and domestic violence occurring. The Protection Order is confirmed with variations as set out in this judgment. BACKGROUND [ 3 ] The parties, E.T.S. and S.J.B., are not married. They began cohabiting in late 2012. A daughter was born to them in June 2015. After they separated in July 2019 they attended mediation and agreed to a parenting

schedule for their daughter where S.J.B. would have her in his care two evenings per week and one overnight every second weekend. Despite their mediated agreement, the parties continued to be at odds over the care of their daughter. S.J.B. demanded that they share parenting time equally. E.T.S. was opposed to a shared- parenting

schedule as she had left the relationship due to S.J.B.’s abuse of her and she felt unable to communicate with him. The January 15, 2020 Protection Order [ 4 ] On January 15, 2020, E.T.S. applied for a Protection Order against S.J.B. for herself and the child. In her application, E.T.S. provided evidence of incidents of verbal, mental, emotional, physical, sexual and financial abuse she had experienced at the hands of S.J.B. during their seven-year relationship.

She sought the Protection Order after S.J.B. came to her home without notice, entered the home without invitation and took their daughter without her consent. The child was returned after two days. E.T.S. sought protection from S.J.B.’s behaviour in absconding with the child. Further, she complained that S.J.B.’s many texts and phone calls badgered her about changing the parenting schedule.

She said she felt under siege by the unrelenting efforts of S.J.B. to control her. [ 5 ] The application was heard by JJP Pillipow who found that S.J.B. had committed domestic violence and stalking against E.T.S. and that it was of a serious nature and would likely continue. In particular, the JJP found that S.J.B. had subjected E.T.S. to a pattern of

coercive and controlling behaviour. [ 6 ] A Protection Order was granted for E.T.S.’s protection that prohibited S.J.B. from communicating with her either directly or indirectly with exceptions for attendances at court, mediation or assessment. S.J.B. was also prohibited from attending within 200 meters of E.T.S.’s residence. The order did not include the child. [ 7 ] S.J.B. applied on February 13, 2020, to set the order aside. At the same time, S.J.B. filed a Petition in which he claimed primary care of the child and other related relief.

E.T.S. filed an Answer in which she opposed S.J.B.’s claims and made her own claims for primary care of the child, protective relief and claims for child support and family property division. The 2020 Set Aside Application and the Family Proceedings [ 8 ] The two proceedings – the application to set aside the Protection Order and the claims of each party for custody and other relief – are separate legal proceedings although they are filed in the same Family Division court file.

The parties had originally filed their pleadings in the Selkirk Centre. [ 9 ] While his set-aside application was pending, S.J.B. sought an emergent hearing, alleging that he had been prohibited by E.T.S. from seeing his daughter. The Court denied S.J.B.’s request for an emergent hearing and directed that the parties proceed expeditiously through the triage process. [ 10 ] The set-aside application was adjourned to June 2020 due to COVID-19 restrictions.

The file was then transferred to the Winnipeg Centre. [ 11 ] The set-aside application was first addressed by the Triage Conference Judge, Thomson J., on February 8, 2021. A hearing date of April 20, 2021, was set and filing deadlines were imposed upon the parties. [ 12 ] To address the competing motions of each party for interim custody of the child, Thomson J. heard arguments at a prioritized hearing on March 15, 2021. He determined that S.J.B.’s access to the child would be unsupervised and increased gradually.

The parties returned before Thomson J. in April 2021, and a further custody order was agreed to, the terms of which would be reviewable at the first case conference. The April 2021 Set Aside Order of Thomson J. [ 13 ] Just before the scheduled set-aside hearing, the parties reached an agreement and submitted a consent order to Thomson J. on April 14, 2021, containing the following terms:

(1) The January 15, 2020 Protection Order was set aside;

(2) Under The Family Maintenance Act , R.S.M. 1987, c. F20 : (

a) S.J.B. shall not contact or communicate directly or indirectly with E.T.S. except on the following conditions: (

i) on parenting issues related to the child; (ii) the communication on parenting issues shall be conducted using “Our Family Wizard” application. (

b) S.J.B. shall not attend at or near or within 200 hundred meters of where E.T.S.: (

i) resides; (ii) regularly attends; and (iii) works or carries on business. (

c) S.J.B. may attend where E.T.S. is present for the following purposes: (

i) any court proceeding in which S.J.B. is a party or an accused person; and (ii) mediation by court referral or an assessment, investigation or evaluation ordered by a court, in relation to custody, access or a related family matter. (

d) While attending a proceeding (for the allowed purposes) S.J.B. shall: (

i) remain at least two meters away from E.T.S. at all times; and (ii) refrain from communicating with E.T.S. except in the presence and with the approval of the Judge, Master (now Associate Judge) or other officer of the court in a court proceeding, or in the presence and with the approval of the mediator, assessor, investigator or evaluator; (

e) S.J.B. shall not remain in any location where he would be alone with E.T.S.; (

f) S.J.B. shall not enter or remain in any place where E.T.S. is present; (

g) the order would terminate on January 15, 2023; and

(

h) police assistance in enforcing the terms of the order. The Final Order in the Family Proceedings [ 14 ] After the resolution of the set-aside application, the family proceedings advanced to case conferencing. As the April 2021 order established a neutral communication mechanism through “Our Family Wizard” (“OFW”), the parties concentrated on resolving the other issues raised in their pleadings. During the three case conferences that followed, April 27, 2021, September 3, 2021, and May 19, 2022, Everett J. assisted the parties in narrowing the issues in dispute.

At the first case conference, the parties agreed to the resolution of all family property claims. Subsequent interim orders pronounced by Everett J. detailed the parties’ agreements regarding interim care of the child.

A Final Order, signed July 23, 2022, was pronounced with the consent of both E.T.S. and S.J.B. regarding custody and child support and included provisions restricting the OFW communications between the parties to discussions of parenting transition times only. [ 15 ] At the conclusion of the family proceedings, the parties’ contact and communication with one another were governed by both the April 2021 Order and the July 23, 2022 Final Order. The only direct communication between the parties was to occur using OFW and restricted to transferring the child between them.

The October 2022 Protection Order [ 16 ] On October 26, 2022, E.T.S. applied in person, and without notice to S.J.B., for a stalking-related Protection Order against S.J.B. pursuant to provisions of the Act . [ 17 ] In her application, E.T.S. stated that S.J.B. was threatening to come to her home to pick up the child in violation of the April 2021 Order. She also complained that after the Final Order was granted, S.J.B. began using OFW to send her messages in an attempt to renegotiate the Final Order. She claimed he demanded that he be able to call the child while she was in E.T.S.’s care.

On September 26, 2022, S.J.B. sent an OFW message in which he proposed that they go into business together so that their daughter could have a better life. [ 18 ] In addition to using OFW to send her inappropriate messages, E.T.S. alleged that S.J.B. attended to her parents’ home when he had no reason to, and also followed her into the school office, all in violation of the April 2021 Order.

E.T.S. alleged that S.J.B. drove past her home regularly and that he frequented a restaurant just down the street from her home even though he did not live in the neighbourhood. [ 19 ] On September 26, 2022, E.T.S. said that she instructed her counsel to contact S.J.B.’s counsel in an effort to get S.J.B. to stop sending her messages unless they were about pick up and drop off times. No reply was received. The frequency of the OFW messages then began to increase. On October 23, 2022, S.J.B. placed a phone call to E.T.S.’s phone. She did not answer the call.

E.T.S. said that these events triggered fear in her that S.J.B. would resume his past pattern of controlling and coercive behaviours towards her as detailed in her January 2020 Protection Order application. She feared that S.J.B. would not stop harassing her without court intervention. [ 20 ] E.T.S. attached the following documentation to her written Protection Order application: a. Copies of OFW communications between herself and S.J.B. from May 31, 2022 to October 23, 2022; c. A copy of the Protection Order granted January 15, 2020; d.

A copy of the Final Order of Everett J. regarding custody and child support dated July 23, 2022; and e. A copy of the “File Details” from the Court of King’s Bench Registry in relation to the family proceedings in which she had highlighted the April 2021 Order. [ 21 ] JJP Young convened an oral hearing on October 26, 2022, during which E.T.S. provided sworn testimony in addition to her written application. The JJP questioned E.T.S. regarding her belief that she had a “no contact” order in place. E.T.S. had clearly stated in her application that she believed that the April 2021 Order was in effect.

The JJP advised her that she had reviewed the court registry and there was no record of a “no contact” order (Transcript page T3, Line 7). Further, she advised E.T.S. that “you don’t get to agree to get rid of the protection order” (Transcript page T3, Lines 34 and 35). The JJP opined that the Final Order superseded all previous orders (Transcript page T5, Lines 30 through 33) so the April 2021 Order was no longer in effect.

The JJP then considered the provisions of the Final Order and its requirement that OFW be used to discuss transition times for the child. [ 22 ] The JJP heard further evidence from E.T.S. regarding S.J.B. driving past her home and frequenting the nearby restaurant. The JJP also considered E.T.S.’s evidence of the past history of domestic violence. The JJP found that S.J.B. had abused E.T.S. both psychologically and emotionally and thus, domestic violence had occurred. The JJP also found as a fact that S.J.B.’s actions in following E.T.S. and communicating with her in unwanted ways amounted to stalking.

Further, the JJP found that S.J.B.’s actions were escalating and that E.T.S. was fearful of further incidents, thus a protection order was justified. [ 23 ] The Protection Order contained the same terms as the April 2021 Order. The Protection Order took effect on October 26, 2022 and was for a period of three years. [ 24 ] S.J.B. was served with the Protection Order. He filed an application to set aside the Protection Order which was supported by his affidavit sworn on November 14, 2022.

[ 25 ] The matter appeared on the Protection Order Set Aside List on December 21, 2022. The presiding judge varied the order to allow E.T.S. and S.J.B. to communicate on parenting matters only through OFW. S.J.B. was also permitted to file a supplemental affidavit setting out evidence of lost income as a result of the order being granted. A hearing date of May 11, 2023, was set. S.J.B. did not file a supplemental affidavit. THE HEARING [ 26 ] Both parties appeared before me with counsel on May 11, 2023. S.J.B. had retained counsel just days before the hearing. His counsel had previously represented him in the family proceedings. [ 27 ] S.J.B. instructed his counsel to seek a

summary judgment based upon his belief that the JJP had no jurisdiction to grant the Protection Order due to the presence of the April 2021 Order. He submitted that, as the terms of the two orders were identical (other than the expiry date), it was unfair for him to be bound by the two orders at the same time. Further, he argued that the April 2021 Order was paramount to the Protection Order and thus the JJP had no jurisdiction to grant the Protection Order. [ 28 ] S.J.B. did not file any materials to support his claim for

summary judgment. Of greater concern, however, was the lack of notice to E.T.S. Her counsel was informed of the motion only ten minutes before the hearing. E.T.S. opposed the motion and took the position that proceeding with a

summary judgment hearing without notice was unfair. I expressed my grave concerns about the lack of notice and stood the matter down to obtain a new date to allow both parties time to file affidavits and motion briefs to address S.J.B.’s

summary judgment motion. Upon resuming the hearing, a new date (June 6, 2023) was offered to S.J.B. but he instructed his counsel that he would not be proceeding with his motion and that he was ready to have his set-aside application heard. The hearing then resumed. [ 29 ] The documentary evidence before me was as follows: a. E.T.S.’s written application for a Protection Order dated October 26, 2022; b. The disposition sheet dated October 26, 2022; c. The Protection Order granted October 26, 2022; d. The Certificate of Service of the Protection Order on S.J.B. dated October 27, 2022; e.

S.J.B.’s Notice of Application dated November 14, 2022; f. The Affidavit of S.J.B. sworn November 14, 2022; g. Transcript of proceedings before JJP Young on October 26, 2022; h. Affidavit of E.T.S. sworn May 5, 2023; i. The April 2021 Order; j. Copy of OFW message from S.J.B. to E.T.S. dated September 27, 2021; k. Copy of OFW messages between S.J.B. and E.T.S. on October 12, 23 and 24, 2022 respectively; l. Screenshot of call history of E.T.S.’s phone on October 23, 2022; m. Notice of Discontinuance of claim related to Pitblado LLP claim against E.T.S.; and n.

Copy of email from S.J.B. to E.T.S. dated January 9, 2023 [ 30 ] As was her right under the Act ( s. 12(3) ), E.T.S. presented additional documentary evidence and through her own oral testimony. E.T.S. also called her friend B.T. as a witness. [ 31 ] S.J.B. relied upon his November 14, 2022 affidavit and his own testimony. He called his common-law partner C.M. as a witness. Neither party had cross-examined the other before the hearing on their respective affidavits. [ 32 ] The oral evidence was concluded on May 11, 2023. I heard submissions from both counsel.

Given certain issues raised in argument, I directed both counsel to provide me with written submissions. On May 18, 2023, I provided each counsel with case law related to the use of OFW and asked them to consider same in their submissions. Both counsel appeared before me on May 31, 2023, to make further submissions. I reserved my decision. ANALYSIS [ 33 ] E.T.S.’s October 26, 2022 application sought an order to protect herself and the child from the behaviour of S.J.B.

She relied upon the provisions of the Act , which define domestic violence and stalking as: Who commits "domestic violence" 2(1) Domestic violence occurs when a person is subjected to

an act or omission mentioned in subsection (1.1) by another person who

(

a) is cohabiting or has cohabited with the person in a spousal, conjugal or intimate relationship; (

b) has or had a family relationship with the person, in which they have lived together; (

c) has or had a family relationship with the person, in which they have not lived together; (

d) has or had a dating relationship with the person, whether or not they have ever lived together; or (

e) is the other [biological or adoptive] parent of their child under

Part 2 of The Family Law Act , regardless of their marital status or whether they have ever lived together. Meaning of "domestic violence" 2(1.1) The following acts and omissions constitute domestic violence: (

a) an intentional, reckless or threatened act or omission that causes bodily harm or property damage; (

b) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damage; (

c) conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse; (

d) forced confinement; (

e) sexual abuse. Meaning of "stalking" 2(2) Stalking occurs when a person, without lawful excuse or authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, repeatedly engages in conduct that causes the other person reasonably, in all the circumstances, to fear for their own safety. Examples of conduct 2(3) The conduct referred to in subsection (2) includes the person (

a) following from place to place the other person or anyone known to the other person; (

b) communicating directly or indirectly with or contacting the other person or anyone known to the other person; (b.1) using the Internet or other electronic means to harass or threaten the other person;

(

c) besetting or watching any place where the other person, or anyone known to the other person, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or anyone known to the other person. [ 34 ] When considering E.T.S.’s application, the JJP was required to adhere to and to consider the following provisions of the Act : Granting a protection order without notice 6

(1) A designated justice of the peace may grant a protection order without notice if the justice determines that (

a) the respondent (

i) is committing or has committed domestic violence against the subject, or (ii) is stalking or has stalked the subject; (

b) the subject believes that the respondent will continue or resume the domestic violence or stalking; (

c) the subject requires protection because there is a reasonable likelihood that the respondent will continue or resume the domestic violence or stalking; and (

d) due to the seriousness or urgency of the circumstances, the protection order should be made without delay. Considerations 6.1

(1) When determining whether to grant a protection order, a designated justice of the peace must consider, in addition to any other relevant consideration, the following risk factors: (

a) the history of domestic violence or stalking committed by the respondent; (

b) the nature of the domestic violence or stalking committed by the respondent; (

c) whether the domestic violence or stalking is repetitive or escalating; (

d) whether the domestic violence or stalking is evidence of a pattern of coercive or controlling behaviour respecting the subject; (

e) other previous incidents of violence committed by the respondent, including any violence against animals; (

f) any mental health concerns involving the respondent; (

g) the current status of any relationship between the subject and the respondent, including any recent separation or intention to separate; (

h) any other circumstances of the respondent that may increase the risk to the subject, such as (

i) substance abuse, (ii) employment or financial difficulties, or (iii) access to firearms or other weapons; (

i) any circumstances of the subject that may increase the risk to the subject, such as pregnancy, age, family circumstances, health or economic dependence. Consideration of legal proceedings 6.1

(2) When determining whether to grant a protection order, the designated justice of the peace must consider any information available at the hearing from court registries respecting any criminal proceedings, family law proceedings and other legal proceedings involving the respondent. That information forms part of the record of the hearing. No bar to granting protection order 6.1

(3) The designated justice of the peace may grant a protection order even if one or more of the following circumstances exist:

(

a) a protection order has previously been granted against the respondent, regardless of whether the respondent has complied with that order; (

b) the respondent no longer resides in the subject’s residence or in the same community where the subject resides; (

c) the respondent is incarcerated at the time the application is made; (

d) criminal charges have been or may be laid against the respondent; (

e) the subject is residing in an emergency shelter or other safe place; (

f) the subject has a history of resuming a relationship with the respondent. Reasons 6.2 A designated justice of the peace must provide oral reasons at the time they make a decision on an application for a protection order. [ 35 ] S.J.B. applied to set aside the Protection Order pursuant to s. 11(1) of the Act which states: Application to set aside order 11

(1) A respondent against whom a protection order is made may apply to the court within 20 days after being served with the order, or such further time as the court may allow, to have the order set aside or to make an order in relation to an item that has been delivered up or seized pursuant to the order. [ 36 ] The options open to me in this matter are set out under s. 12(1) of the Act , which provides as follows: Nature of hearing 12

(1) The judge hearing an application under subsection 11(1) may confirm or set aside the order or may vary it by deleting clauses or by adding clauses from subsection 7(1) (content of protection order) or make any order in relation to an item that has been delivered up or seized pursuant to the order that they consider appropriate. [ 37 ] As noted earlier in this decision, the Protection Order was varied on December 21, 2022, to allow the parties to contact one another through OFW on parenting issues.

It is open to me to confirm the order, set it aside, or vary it using the relief allowed under the Act . [ 38 ] In accordance with s. 12(2) of the Act , S.J.B. has the onus of proving that the order ought to be set aside: Onus on respondent 12

(2) At a hearing, the onus is on the respondent to demonstrate, on a balance of probabilities, that the protection order should be set aside or that an item that was delivered up or seized pursuant to the order should be dealt with in the manner requested. [ 39 ] In Baril v. Obelnicki , 2007 MBCA 40 , the Court determined that the respondent’s onus is an evidentiary one only (at paras. 5 and 127): 5 …. A respondent need not show that the without notice order was granted in error.

A respondent need only show, on a balance of probabilities, that there is an issue arising from the without notice hearing that entitles them to have the order set aside on the basis of absence of full disclosure or based on the weight of all the evidence adduced at both the without notice and review hearings. This would be in accord with the principles of fundamental justice. …. 127 However, I believe that the most effective remedy in these circumstances would be to read s. 12(2) in a manner consistent with Charter values, and that can be accomplished by restricting the burden imposed by the

section to an evidentiary burden only. Thus, the respondent must demonstrate, on a balance of probabilities, that it is just or equitable that the judge set aside the order. He may show

among other possibilities that, on a balance of probabilities, full disclosure was not made or that the restraints on his liberty are unnecessary or too restrictive or that the stalking will not continue or based on the weight of the evidence at the review hearing the order should be set aside. In this way, the legislative regime is preserved while the legislative purpose is accomplished. [ 40 ] S.J.B. argued that he had met the evidentiary onus in this matter and that the order ought to be set aside based upon the following: a. E.T.S.’s failure to make full disclosure; b.

The JJP made a number of errors in her consideration of the April 2021 Order and had no jurisdiction to grant the order; c. The weight of the evidence at the hearing was insufficient to support a finding of domestic violence and stalking; d. The restraints on his liberty are unnecessary or too restrictive; and e. If his actions had amounted to stalking, there was no evidence that the stalking would continue. a.

E.T.S.’s Failure to Make Full Disclosure [ 41 ] S.J.B.’s counsel argued that E.T.S. failed to make full disclosure by not providing a copy of the April 2021 Order to the JJP. [ 42 ] The evidence before me was that E.T.S. sought assistance from the police to enforce the April 2021 Order only to be told that such an order did not exist and she should seek a protection order. E.T.S. explained to the JJP that her former counsel never provided her with a copy of the April 2021 Order. E.T.S. made a copy of the court registry printout showing that Thomson J. had, in fact, made an order on April 14, 2021.

The entry on the court registry described the order as “THOMSON, J. 14APR2021; P.O 15JAN2020 SET ASIDE; PREV RELIEF GRNTED; POLICE ENF; TRIAL SET FOR 20APR2021 CANCELLED”. [ 43 ] S.J.B.’s argument that E.T.S. was required to provide a copy of the April 2021 Order is not supported by the provisions of s. 6.1(2) of the Act . Applicants seeking relief do not always have documents available to them regarding their legal proceedings. The Act requires the JJP to consider “any information available at the hearing from court registries”.

There is no requirement that applicants provide copies of all court orders that may be in force. [ 44 ] I find that E.T.S.’s application provided fulsome disclosure and was as complete as she could have made it in her circumstances. She sought relief based upon all of the information in her possession. She made explicit and detailed disclosure to the JJP regarding the family proceedings, the April 2021 Order, the Final Order and the OFW communications between herself and S.J.B.

E.T.S. made full and fair disclosure in her application and testimony before the JJP. [ 45 ] S.J.B. further argued that E.T.S. made her application in the midst of family proceedings. He pointed out that he had warned E.T.S. that he would go to court to enforce the provisions in the Final Order regarding travel and the child’s passport. S.J.B. cited Pritchard v.

Pritchard , 2018 MBQB 26 ; and Coutu and Coutu , 2019 MBQB 177 , as authorities that “without notice” hearings before a JJP ought to be avoided in the midst of family proceedings. [ 46 ] I find that E.T.S.’s application was made post-Final Order at a time where there were no pending family proceedings between the parties. S.J.B. may have threatened E.T.S. with legal proceedings but none were filed or existing on the court registry at the time of the “without notice” hearing before the JJP. b.

The JJP’s Errors and Jurisdiction [ 47 ] S.J.B. argued that the JJP made a number of errors regarding the April 2021 Order. The transcript of the JJP hearing discloses that the JJP considered E.T.S.’s assertions that the April 2021 Order was a “no-contact” order. The JJP then took a break to examine the court registry. [ 48 ] It is clear that the registry entry is in error, as the April 2021 Order is not a prevention order under the Act . Rather, it is an order pursuant to s. 10(1) (

j) of The Family Maintenance Act (then in force) setting out the terms of allowable communication and contact between E.T.S. and S.J.B. for a period ending January 15, 2023. [ 49 ] Upon reconvening the hearing, the JJP informed E.T.S. that the April 2021 Order was an interim order only and was thus subsumed by the Final Order. That was not correct. The April 2021 Order stood alone and had an expiry date of January 15, 2023. [ 50 ] Do these errors require that the Protection Order be set aside?

No they do not. [ 51 ] The JJP made her determination based upon the information available to her from the court registries at the time of the hearing. The JJP was not required under s. 6.1(2) of the Act to stop the hearing and secure and review a copy of the April 2021 Order before making her decision. To require a JJP to do so would not be in keeping with the emergent nature of domestic violence hearings.

The statute only requires the JJP to look at the information “available at the hearing”. [ 52 ] S.J.B. then submitted that the JJP erred by not properly considering that the April 2021 Order was described on the court registry as a prevention order made by a judge. He argued that, in accordance with the principle of paramountcy, an order of a superior court Judge supersedes an order of a JJP. Thus, he said, the April 2021 Order superseded any order available to the JJP under the Act on October 26, 2022.

S.J.B. submitted that the JJP erred by “going behind” the Judge’s order to assume jurisdiction and grant the Protection Order. [ 53 ] In addressing S.J.B.’s paramountcy argument, the facts are that the two orders were each made under provincial acts and thus no

paramountcy of laws exists. While the two orders overlapped for a period of three months, they did not conflict with one another as they had identical terms. It was not impossible for S.J.B. to comply with both orders at the same time. [ 54 ] S.J.B. failed to establish that there was something incongruous or out-of-the-ordinary about being bound by two similar orders overlapping in time.

It is inevitable that, where family violence is present and family breakdowns occur, concurrent litigation will occur and orders will be made under various pieces of legislation (both provincial and federal) that serve to provide protection and relief for parents and children. [ 55 ] Finally, S.J.B. argued that, at the time the JJP issued the Protection Order, his liberty was already restricted by the terms of the April 2021 Order.

He submitted that it was inherently unfair for him to be bound by the same terms under two orders made at different times. [ 56 ] While the terms of the two orders are identical, the nature of the orders are different. The April 2021 Order was meant to quell a difficult family breakdown involving allegations of family violence and to provide a specific path forward for two parents to communicate in a neutral way regarding their child. The order had an end date that was designed to assist the parties as they navigated the various stages in the family proceedings.

The Protection Order, on the other hand, was meant to address S.J.B.’s stalking behaviour against E.T.S. that was occurring in the months well after the family proceedings had ended. [ 57 ] S.J.B. failed to make out a case either factually or legally to support his complaint of unfairness in being bound by two concurrent orders. c. Insufficient Weight of the Evidence [ 58 ] Much, but not all of the evidence in this matter, concerned S.J.B.’s use of OFW. E.T.S. presented printouts of post-Final Order OFW messages that S.J.B. sent her that she alleged were abusive.

To provide context for her concerns of escalating domestic violence, E.T.S. also provided printouts of pre-Final Order OFW messages which contained messages that caused her to fear S.J.B. [ 59 ] I have reviewed all of the OFW messages provided by the parties. I find that since the granting of the April 2021 Order, S.J.B. used OFW to send messages to E.T.S. that went beyond reasonable common “parenting issues”. He complained about E.T.S. using the court process to make it difficult for him and the child to visit (Messages 69, 77, 86, 113, 144, 173 and 226).

He accused E.T.S. of parental alienation and withholding the child from him (Messages 78, 133, 144 and 227). He used the OFW to lecture E.T.S. that her adherence to the visitation

schedule in the court order was not in the best interests of their child and only served to make the child “miss out” (Messages 30, 78, 113, 234 and 281). In some messages, S.J.B. asked E.T.S. to help him understand why sharing the child was so difficult for her (Messages 30, 101, 113, 173, 226 and 234), thus blaming her for the child’s alleged unhappiness. In an OFW message (Message 174), he addressed E.T.S. as “Mama Bear” and sent pictures of the clothing and school supplies he and the child bought on a shopping trip.

His use of a pet name for her alarmed E.T.S. and suggested an intimacy that no longer existed. [ 60 ] In a particularly lengthy message to E.T.S. on September 27, 2021 (Message 179 and Exhibit 11), S.J.B. told E.T.S. that he had taken courses and counselling and joined a better fathering group. He claimed to be a better man and wished to introduce himself to her. S.J.B. suggested a plan where they would take counselling together and then work jointly to give their child a better life.

His plan included attending the child’s school concerts and events together and attending parent-teacher and doctor appointments together. He proposed that, rather than sharing information through OFW, they would co-parent outside the confines of the court order. He desired that they have more detailed communications and in-person contact with one another. This message is clearly a demand to dispense with the orders of the court that restricted communications.

He wanted to fundamentally change their relationship and to eventually reunite with her. [ 61 ] S.J.B. sent another lengthy OFW message on September 26, 2022, which he entitled “In the best interest of [the child]” (Message 264). S.J.B. claimed that, during a period of prayer and reflection, it came to him that they had worked well together in the past. He said he had a vision in which they would go back into business together. S.J.B.’s stated goal was that they make more money together in order to give their child a better and more prosperous life.

He related how an acquaintance sold a company for millions of dollars and they could do the same. He proposed co-parenting and that they “move forward with our lives” for the sake of the child. This message alarmed E.T.S. so much that she instructed her lawyer to contact S.J.B.’s lawyer to ask him to stop sending such messages. [ 62 ] S.J.B. also sent messages in which he sought to alter the parenting

schedule (Messages 257, 258, 266, 267, 268, 269, 271, 272, 276 and 281). S.J.B. demanded telephone contact with the child while she was in E.T.S.’s care. S.J.B. sent a message berating E.T.S. her for not naming him as the child’s emergency contact at the school and threatening to tell the school he is the primary parent if she did not share information with him and be a positive co-parent (Message 261). On October 23, 2022, he sent a message (Exhibit 12) advising that the child would be calling her shortly to tell her about swimming.

According to E.T.S., her phone rang shortly after receiving the message and the call was from S.J.B.’s phone number (Exhibit 13). [ 63 ] I provided both counsel with a copy of Belot v. Connelly , 2013 MBQB 98 ( Belot ) . I asked each counsel to consider the case and provide written and oral submissions regarding S.J.B.’s use of OFW messages. [ 64 ] In Belot , the Court was asked to continue a prevention order where the parents were in conflict regarding care of their child. The Court examined the use of OFW in the context of a family breakdown that included claims of stalking behaviour.

The Court found that the mother’s fears that conflict between her and the father would continue were not “objectively reasonable” in the circumstances. The prevention order was ended and a non-communication order under s. 10(1) (

j) of The Family Maintenance Act was ordered, including the use OFW to communicate. [ 65 ] S.J.B. took the position that all of his OFW communications were proper and about parenting matters. As found in Belot , he argued that a protection order was and is not necessary to address E.T.S.’s “sensibilities”. S.J.B. argued that the evidence supported a finding that E.T.S.’s fears of stalking and domestic violence were not objectively reasonable in the circumstances.

[ 66 ] E.T.S. argued that her circumstances were distinct from those in Belot . She submitted that the evidence as a whole supported a finding that her fears were objectively reasonable, given the history of serious and prolonged family violence. She said that S.J.B.’s continued campaign of coercive control was evident in his use of OFW to badger her into reunification and getting rid of court protections. Additionally, she pointed to the uncontroverted evidence that he drove past her home frequently, despite his parents not living in close proximity to her.

S.J.B. confirmed that he frequented a neighborhood restaurant near her home. E.T.S. pointed to his continued breaches of the Protection Order. [ 67 ] In the hearing, I had a chance to observe both parties. E.T.S. was shaking and tearful as she recalled her life with S.J.B. Her testimony was straightforward, factual and consistent with the evidence she gave to both JJP Pillipow in 2020 and JJP Young in 2022. E.T.S. testified that she felt it necessary to have her friend B.T. review the OFW messages first to prepare her in the event that the message was abusive.

E.T.S. said that the messages asking her to go back into business or to take counselling together were particularly triggering of past traumatic events of domestic violence by S.J.B. She recounted discovering a package from S.J.B. in the child’s school backpack which contained Valentine’s Day cards and a personal vibrator. She said that after living with S.J.B. for seven years, she knew when his mood was escalating to the point that he would act out violently. E.T.S. said that she recognized the escalation of his abusive behaviour in his messages after the Final Order was agreed upon.

E.T.S. was concerned that S.J.B. was using their child as a pretext to initiate phone calls with her and to demand greater in-person and online contact with her. E.T.S. said that she feared that S.J.B. would continue to subject her to verbal, physical, emotional and psychological abuse if the Protection Order was set aside. [ 68 ] The testimony of B.T. corroborated E.T.S.’s evidence. She advised that she has known E.T.S. for the past 20 years. She confirmed that she was asked by E.T.S. to read S.J.B.’s OFW messages in order to identify those that were abusive or inappropriate.

E.T.S. would then choose whether to respond to the message. [ 69 ] B.T. testified that she observed certain events before E.T.S. and S.J.B. separated. She said she was concerned about the manner in which S.J.B. spoke to E.T.S. B.T. recalled that S.J.B. would brag about how lucky E.T.S. was to have him, and that she should be grateful to him. After the parties separated, B.T. said she was very concerned about E.T.S.’s safety. After S.J.B. took the child from E.T.S. in January 2020, B.T. was asked by E.T.S. to help her retrieve the child as she was afraid to meet with S.J.B. alone.

B.T. testified that she witnessed E.T.S. hyperventilating after receiving abusive messages from S.J.B. B.T. said she was convinced that E.T.S. genuinely fears S.J.B. [ 70 ] S.J.B. testified in a confident and direct manner. His evidence was that E.T.S. drank a lot and struggled to parent their child, necessitating his full-time care of the child during the relationship. He said that upon separation, E.T.S. used the January 2020 Protection Order to keep him from the child. He had to get the Court to intervene so that he could see the child.

In his supporting affidavit, S.J.B. said that E.T.S. instigated a combative custody battle despite the fact that it was he who began the family proceedings. He claimed that the January 2020 Protection Order was set aside because he disproved S.J.B.’s allegations of abuse. The facts are that S.J.B. consented to the April 2021 Order that severely restricted his contact and communication with E.T.S. [ 71 ] S.J.B. testified that all his OFW messages were appropriate and related to parenting issues in compliance with the Final Order.

He informed the Court that he had joined a father’s group and had taken a number of courses, including anger management and the For the Sake of the Children program. He stated that his goal was to do the best by their child and to have better and more open communication with E.T.S. He said that he finds E.T.S. to be hostile to co-parenting with him. He said that he felt that E.T.S was and is not acting in the child’s best interests when she rejects his suggestions on improving their relationship. [ 72 ] Under cross-examination, S.J.B. denied trying to re-negotiate the parenting schedule.

He explained that he was just trying to follow the Final Order and to make up for time he missed due to E.T.S. withholding the child. He said that his intention in suggesting that he and E.T.S. go back into business together was due to his concerns about E.T.S.’s finances due to her being sued for legal fees by her former counsel. When confronted with proof that E.T.S. resolved that lawsuit, S.J.B. then said that he felt it would be in their child’s best interests that they both earn good incomes. [ 73 ] S.J.B. denied sending cards and a personal vibrator to E.T.S. in their child’s school backpack.

His recollection was that those items may have been part of a larger group of boxes of E.T.S.’s personal property she left upon separation and that he later delivered to her home and left on the doorstep. [ 74 ] S.J.B. admitted letting the child use his phone to call E.T.S. on October 23, 2022. He saw no harm in letting the child call E.T.S. to tell her about swimming. He admitted that he knew that the April 2021 Order prohibited the call. [ 75 ] S.J.B.’s common-law partner, C.M., testified in support of his application.

She confirmed that she has been in a relationship with S.J.B. for two years and that she has a six-year-old son who lives with them. She testified that S.J.B. has never acted abusively towards her. She said that S.J.B. has acted appropriately at all times around her son and his own child. C.M. testified that she also acted as a “filter” on S.J.B.’s OFW communications with E.T.S. She said that she did so to help S.J.B. be “clear and concise” in his messages to E.T.S. [ 76 ] Upon considering all of the evidence before me, I find that I prefer the evidence of E.T.S.

She impressed me as being an honest witness who has no improper agenda. Her testimony and demeanour were that of a frightened and upset person. She testified that she was adamant throughout the family proceedings that she was neither able nor willing to have direct contact with S.J.B. She agreed to the Final Order with its set

schedule of parallel parenting. She agreed to communicate with S.J.B. about transition times through OFW. E.T.S. testified that she has no wish to co-parent with S.J.B. She wants to follow the parenting time set out in the Final Order without constant communications and argument from S.J.B. [ 77 ] Both collateral witnesses impressed me as being truthful. [ 78 ] S.J.B.’s demeanour and testimony at the hearing left me with the impression of a self-righteous and entitled person who was convinced that his actions throughout have been correct and always in the best interests of the child.

He opined that the Final Order required both of them to act as shared parents, which required that they work together. He felt that he should have unfettered communication with E.T.S. to discuss the child’s progress, education and development. He has learned from his courses how to be a

better parent and he has taken those lessons to heart. He finds it sad that E.T.S. does not wish to parent together with him, as the child is losing out. [ 79 ] It is clear that S.J.B. does not understand and/or is unwilling to accept that E.T.S. is not prepared to have open communication with him now or in the future. His lack of insight has led him to stretch the boundaries of acceptable communications permitted him through OFW.

I find that he used the platform to try to re-negotiate the parenting arrangement, to lecture E.T.S. on her role as a parent, to badger E.T.S. to communicate with him contrary to the court orders, to pressure E.T.S. to go back into business with him and to coerce her into taking counselling with him so that they could raise their child together. [ 80 ] In assessing the evidence in this matter, I have considered and applied the definition of “domestic violence” under s. 2(1) of the Act .

I find that S.J.B. used the OFW platform to send messages that caused E.T.S. to have a “reasonable fear of bodily harm” and thus he has committed domestic violence as defined under s. 2(1.1) (

b) of the Act . Further, I find that S.J.B.’s OFW messages, his threats to attend E.T.S.’s home in person and his placing a call to E.T.S., all in violation of the April 2021 Order, is “conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse.” S.J.B. has thus committed domestic violence within the meaning of s. 2(1.1) (

c) of the Act . S.J.B. failed to follow the April 2021 Order and the Final Order provisions regarding communicating with E.T.S. d. The Restraints on his Liberty are Unnecessary or Too Restrictive [ 81 ] As previously noted, S.J.B. was asked to file further affidavit evidence regarding the dire economic consequences he said he has suffered while the Protection Order has been in place.

S.J.B. failed to file affidavit evidence of such consequences. [ 82 ] Instead, S.J.B. gave testimony at the hearing in which he claimed that he was not considered for certain government and security sector jobs as a result of the Protection Order. When asked if he had any documentary evidence to support his claim, S.J.B. offered to have the Court look at an email on his phone. The Court declined to do so. No further evidence was presented on this issue. [ 83 ] I find that S.J.B. has not proven that the restraints on his liberty are unnecessary or too restrictive. e.

The Stalking Would Not Continue [ 84 ] Under the Act , stalking is defined as occurring “when a person, without lawful excuse or authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, repeatedly engages in conduct that causes the other person reasonably, in all the circumstances, to fear for their own safety” (s. 2(2)). Examples of stalking conduct are set out in s. 2(3) of the Act .

S.J.B.’s improper use of OFW is a form of stalking pursuant to s. 2(3)(b)(b.1) in that he used electronic means to harass E.T.S. [ 85 ] In his affidavit evidence, S.J.B. explained that he drove past E.T.S.’s home and went to a restaurant down the street from her home because his parents live in the area, he has numerous customers in the area and he grew up in the area. He averred in his supporting affidavit that he frequented the restaurant with his parents, his partner and his clients and that he and E.T.S. had frequented the restaurant during their relationship.

He suggested that E.T.S. knew it was his favourite restaurant. [ 86 ] The Protection Order does not prohibit him from going to the restaurant. However, it does restrict him from being within 200 meters of E.T.S.’s home and he violated that restriction each time he passed by her home. His parents do not live in close proximity to E.T.S. S.J.B.’s behaviour in insisting on eating in the restaurant and driving past E.T.S.’s home show a wanton disregard for E.T.S.’s feelings and sense of safety.

It convinces me that he will continue to act in a way to satisfy his own needs, heedless of the aim of the Protection Order. [ 87 ] When confronted on cross-examination with a January 2023 email directly from him to E.T.S. in which he used a pet name “Angel” for her, S.J.B. explained that it was a computer-generated message for business contacts through the on-line service “Alignable”. He said that he simply forgot to delete E.T.S. from his contacts list.

Given S.J.B.’s stated fears that E.T.S. is simply targeting him with a protection order, it is puzzling that S.J.B. would have neglected to remove E.T.S. from a service that would generate a direct email to her, and addressing her as “Angel” which would likely result in a complaint by E.T.S. [ 88 ] The evidence before me supports a finding that S.J.B.’s stalking behaviour will continue unless the Protection Order remains in place.

SUMMARY [ 89 ] The Protection Order is confirmed. It is open to me, however, to vary the Order and I will do so as follows: a. S.J.B. may have direct communication with E.T.S. by use of the “Our Family Wizard Program” in accordance with the Final Order signed July 23, 2022. The communications must be child-focused, non-personal and businesslike in nature and relate to information only pertaining to the transfer of the child; b. S.J.B. shall not use the child as a messenger to communicate with E.T.S.; c.

S.J.B. and E.T.S. may share schedules using an online calendar or in writing through the Our Family Wizard website; and d. S.J.B. shall refrain from engaging the child in any discussions or questioning about E.T.S.’s personal life, health or social activities. COSTS [ 90 ] As E.T.S. has been the successful party, she is entitled to her costs of these proceedings. In the event the parties are unable to agree on costs, they may make written submissions including a bill of costs, according to the following timeline: a. E.T.S. shall submit her materials within 20 days;

b. S.J.B. shall have 20 days thereafter to submit his materials; and c. E.T.S. shall have 10 days thereafter for any reply. ____________________________ J.