TCJ v DK, 2023 ABKB 612

Court of King’s Bench of Alberta Citation: TCJ v DK, 2023 ABKB 612 Date: 20231031 Docket: FL02 00482 Registry: Drumheller Between: TCJ Applicant - and - DK Respondent Restriction on Publication No Publication – See the Protection Against Family Violence Act , section 8(3) . By Court Order, there is a ban on publishing the names of the parties in this matter. _______________________________________________________ Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I.

Background [ 1 ] The Applicant asks that I confirm an ex parte Emergency Protection Order (“EPO”) granted by Justice of the Peace A. Verenka (the “JP”) on February 8, 2023, pursuant to

section 2 of the Protection Against Family Violence Act , RSA 2000 c P-27 (“ PAFVA ”). Alternatively, she requests that I revoke and replace the EPO with a King’s Bench Protection Order (“KBPO”) pursuant to section 3(4) of the PAFVA .

The matter was heard before me as a contested viva voce hearing on October 27, 2023. [ 2 ] The Respondent asserts that the test for confirming the EPO or granting a KBPO is not met and that if any order is warranted, I should grant a mutual No Contact Order. [ 3 ] In preparing my decision, I have reviewed the Application Form, the Transcript of Proceedings, the Respondent’s Response Affidavit sworn on April 25, 2023 (the “Response Affidavit”), and the parties’ testimony. [ 4 ] The parties started a relationship in about May 2021 which ended in February 2023 when the Respondent asked the Applicant to leave their home, just prior to the granting of the EPO.

The parties are common law partners and are the parents of a child who is almost 2 years old (the “Parties’ Child”). The Applicant has another child (the “Older Child”) from a previous relationship.

[ 5 ] On February 8, 2023, Constable Bouzane appeared before the JP and provided the following evidence in support of the EPO: ● Over the last 6 months of their relationship, the Respondent’s verbal and physical abuse of the Applicant have escalated into threats and violence; ● During one incident, the Respondent took a knife, held it to the Applicant and threatened to kill her; ● During another incident, the Respondent stabbed the bed with his knife; ● In the third incident, the Respondent told her he was going to chop her up into pieces with an axe; and ● The Respondent pushed the Older Child and shook him. [ 6 ] During her viva voce testimony, the Applicant testified that while the relationship started out well enough, there were increasingly red flags about the Respondent’s escalating temper which manifested itself in him throwing various objects sometimes at her (several photographs of garbage strewn on the floor were admitted as Exhibits), yelling into her ears, and screaming.

His loss of temper was coupled with excessive drinking, and he would often hide liquor bottles around the house. His screaming would often occur in front of the Parties’ Child and the Older Child. She testified that “it would not take much to set [the Respondent] off” and that when this occurred, the Respondent would start yelling. [ 7 ] The Applicant testified the Respondent threatened to cut her to pieces. On one occasion, he stabbed a knife into his desk (not the bed, as the Constable stated).

According to the Applicant, the Respondent waved his knife at her, threatened to kill himself, told her he would drive himself and the children off a cliff, and that he would abscond with the Parties’ Child. She testified that on one occasion, the Respondent tried to throw a chair at her, but the dog was able to get a hold of the chair in his mouth and got in between them (a photograph of the chair with the bite mark was admitted as an Exhibit). The Applicant spoke about an incident where the Respondent pushed her, causing a bruise to her upper leg (the photo was admitted as an Exhibit).

During the Applicant’s brief cross-examination by the Respondent, she denied the bruise to her leg was caused by anything other than his assault of her. The Applicant testified that she witnessed an incident where the Older Child accidentally grabbed the Respondent’s hand and that the Respondent, who was recovering from hand surgery at the time, became angry and pushed the Older Child’s arm backward, scaring him.

The Applicant testified that since then, the Older Child has not wanted to spend time alone with the Respondent, is undergoing counselling, and fears for the safety of the Parties’ Child when she is alone with the Respondent. [ 8 ] The Applicant is frightened the Respondent will make good on his threat and abscond with the Parties’ Child. She thinks she has seen his truck in her neighbourhood. She points to a text the Respondent sent her one day after the EPO was issued (February 9, 2023) with a photo of a necklace (in the shape of a heart) with the following text message: So did you get your phone working?

Got me paper work see you in court on the 16 th I’m so excited this is going to be so fun! My lawyers will be in contact [ 9 ] She says this text demonstrates the Respondent’s refusal to comply with the terms of the EPO and is illustrative of his bullying and harassing behavior. She says she is fearful of him and that he continues to pose a real threat to her and to the Parties’ Child.

Further, the Applicant testified that the Respondent does not have the temperament to parent, that the Parties’ Child is not safe with him, and that she fears for the safety of the Parties’ Child if the Respondent is allowed to have unsupervised parenting. [ 10 ] In the Response Affidavit, the Respondent specifically denies each of the Applicant’s allegations with respect to family violence. He says the Applicant is deeply insecure and mistrustful of him. He specifically denies ever having struck, assaulted, or threatened the Applicant.

He deposes that as their relationship grew more volatile, the Applicant became physical with him, pushing and scratching him, and ripping his clothing. He deposes that their relationship ended when the Applicant left their home shortly before seeking the EPO. He says there is no further need for the EPO given that the Applicant has moved in with her family who live in Three Hills, Alberta, an approximately 40-minute drive from where he lives in Drumheller. [ 11 ] The Respondent adduced several photographs depicting his appropriate relationship with the Parties’ Child.

He says he was, at the time of the parties’ separation, an involved father in the lives of both the Older Child and the Parties’ Child. He says that the incident involving the Older Child was innocent and that his reaction was an instinctive pain response rather than any attempt to lash out. While he admits that he has yelled at the Applicant, he specifically denies saying he would abscond with the Parties’ Child.

He testified that he has gone through detox, currently drinks only a couple of times per month and is seeing a psychologist with whom, amongst other topics, he discusses anger management. [ 12 ] Much of the Respondent’s cross-examination involved a review of various Facebook posts the Respondent made from February 2023 onwards.

These include various memes, including “I want to see my Daddy!”, “My attitude is the result of your actions, so if you don’t like my attitude, blame yourself!”; “False Allegations”; “Getting called a liar when you’re telling the truth is one of the most frustrating things in the world”; “To any future woman in my life Trust and communication are the two things I need in life”; “Breathe, Believe, Love and hold on to the truth.

Words from a father missing his daughter”; “People have to pretend you’re a bad person so they don’t feel guilty about the things they did to you”; “People will provoke you until they bring out your ugly side, then play victim when you go there”; and “Darren, you are a...Pitbull. You love your family a lot. You are 100% loyal. You are a great friend but a scary enemy”.

He has also posted several photographs showing him and the Parties’ Child together. [ 13 ] He admitted these were posted on his public Facebook page which is accessible to any member of the public (it does not appear the Applicant’s counsel had any issue accessing these). He denies these posts were targeting or intended for the Applicant. He says that the Applicant is currently blocked from his Facebook page. It is conceded by the Applicant’s counsel that no evidence was led

before me of the Applicant having viewed or been made aware of these posts. [ 14 ] The Respondent admits he sent the Older Child’s father a text message in September 2023 which reads: Hi.. we have never met but have a lot in common was wondering if you want to compare notes let me know if not I respect your space. If not I do have a lot of pictures of your son I think you would want. I can send you When asked why he sent this text, the Respondent replied that he was trying to elicit information from the father that might be useful in his EPO defence.

He denies having sent the text as an indirect means of communicating with, or to intimidate, the Applicant. [ 15 ] With respect to the text he sent the Applicant on February 9, 2023, the Respondent explained he had not read the conditions of the EPO, believed the EPO only prohibited physical contact, and that once he realized he had breached the no contact provisions in the EPO he stopped all communications with her.

He admits he has been charged with various criminal charges arising out of the Applicant’s allegations including committing an assault with a weapon, harassment and being in breach of the no contact provisions of the EPO and that these charges will proceed to court in March 2024 where he intends to plead not guilty. II. Decision [ 16 ] The question I must answer is whether, pursuant to section 3(4) of the PAFVA , I should revoke, confirm, or revoke and replace the EPO with a KBPO pursuant to

section 4. [ 17 ] In assessing whether an EPO is generally warranted, I am mindful of the comments made in Siwiec v Hlewka , 2005, ABQB 684 at paras 17 and 18 (which are echoed in Fuller v Cryer , 2010 ABQB 622 at para 4 ): Protection orders constitute a restraint on the liberty of the respondent, and they should be regarded as an extraordinary remedy. They are intended to protect claimants from family violence, an objective that was considered so pressing that it was felt to justify granting restraints on the liberty of third parties on an ex parte basis.

As this case well illustrates, in some instances the respondent can be driven from his or her home with virtually no notice, and with no opportunity to respond to the allegations made. Unfortunately, over time it appears that the extraordinary nature of the remedy provided for in the Act has been forgotten. In some instances protection orders are handed out as if they were routine business. Of particular concern is that protection orders are now being used for collateral purposes. Protection orders were designed to protect claimants from family violence.

They were never intended as a backdoor, ex parte way of obtaining custody of children, or exclusive possession of matrimonial premises, or possession of matrimonial chattels.

That may well be an incidental effect of many protection orders, but that should not be their primary purpose. [ 18 ] The test for confirming an EPO requires the Applicant to prove on a balance of probabilities that (1) family violence has occurred; (2) there is reason to believe that the Respondent will continue or resume carrying out family violence; and (3) by reason of seriousness or urgency, an order should be granted: DCM v TM , 2021 ABCA 127 at para 15 .

Each of these requirements must be satisfied on the facts ( DCM at para 15 ) and I must not simply grant a restraining order as a matter of precaution or routine: Schaerer v Schaerer , 2021 ABCA 104 at para 20 . There is in principle no reason why I may not consider those factors set out in section 2(2) of the PAFVA even though technically, these apply only upon the initial granting of the EPO. [ 19 ] Section 3(4) (

d) of the PAFVA allows me to grant a KBPO which may include the conditions enumerated at section 4(2). There is no compelling reason why those factors enumerated in section 2(2) of the PAFVA would not apply. [ 20 ] The scope of my discretion to confirm, revoke or revoke and replace the EPO with a KBPO is discussed in NH v HR , 2022 ABKB 761 at paras 44 and 45 : Even if the elements of the test set out in in DCM v TM are met, the court retains discretion as to whether to revoke or confirm the EPO, or to grant a KBPO: section 3(4) ; GAP v GP , 2010 ABQB 296 at para 25 .

The court must balance the factors supporting the granting of the order, against the restriction on the liberty of the respondent ( Schaerer at paras 19-21 ; DCM v TM at para 16 ), the stigma associated with protection orders ( Fuller at paras 4 and 33-34 ; Lee v Yoo , 2015 ABQB 522 at para 30 ; NDA v KPA at paras 45-47), the potential for misuse of the orders ( Siwiec at para 18 ; LE v JE , 2022 ABQB 76 at para 19 ), and the ripple impacts a protection order may have on the family ecosystem and parenting matters ( Lee v Yoo at para 30 ; LE v JE at para 20 ; JDL v HAL , 2022 ABQB 427 at paras 27-28 ).

Less intrusive orders should be considered. A KBPO provides more flexibility to tailor the terms of the order to respond to the new reality of the family, and in appropriate cases would recognize that the emergency is over even if protection is still appropriate. Some courts have also held that the Court of King’s Bench has a residual discretion, either independent of or pursuant to

section 4 of the PAFVA , to impose mutual no contact orders, mutual restraining orders, or other relief: KWT v LMB , 2019 ABQB 21 at para 66 ; MM v BM , 2017 ABQB 532 at paras 140-144 ; Lee v Yoo at para 32 ; ATC v NS , 2014 ABQB 132 at paras 18-19 . A. Has Family Violence Occurred? [ 21 ] Family violence is defined in section 1(1) (

e) of the PAFVA . [ 22 ] I am not satisfied the Applicant has, on a balance of probabilities, proven that family violence has occurred. The Constable’s statements to the JP regarding the Respondent’s threats, including the use of his knife, offer little detail. I would have expected the Applicant to provide additional details or information during her evidence in chief, but she did not. I am therefore left with her bare assertions which are countered by the Respondent’s bare denials.

[ 23 ] I am in no doubt that the parties’ relationship was at times tumultuous and often volatile, involving screaming, yelling, and shouting. I have little doubt the Respondent often lost his temper, but I suspect each of the parties contributed in their dysfunction. I generally found each of the Applicant and the Respondent to be a credible witness. [ 24 ] I have some concerns with the Applicant’s evidence.

The only physical proof she has depicting what she says is the outcome of the Respondent’s violent temper is a photograph taken of garbage strewn across a floor, the dog bite to the arm of the chair, and the bruise on her leg. She did not provide a photograph of the stab mark left by the Respondent in the desk. The only evidence of any physical injury to her is of her bruise, but it is an injury he says he did not cause. [ 25 ] I have little to no evidence the Respondent perpetrated family violence against the Older Child and the Parties’ Child.

It seems they were largely bystanders who witnessed the yelling and screaming. I am not sufficiently convinced the Respondent made credible threats to abscond with the Child or that he would drive them off a cliff. While I accept the Applicant’s evidence that the Older Child is frightened of the Respondent, I cannot say what lies at the root of his fear, and whether the fact that he was placed in the middle of the parties’ interactions may be the likely cause.

In my view, it is more likely that the Respondent’s reaction to the Older Child grabbing his hand was a pain response as it was an isolated incident and there is no further allegation that the Respondent directly engaged in family violence towards the Older Child or for that matter, the Parties’ Child. [ 26 ] The standard of proof the Applicant must satisfy is a balance of probabilities, namely whether it is more likely than not the event occurred: see FH v McDougall , 2008 SCC 53 at paras 40 and 44 , where the Supreme Court of Canada rejected shifting standards of probability based on the seriousness of the allegations.

This means I must not apply a higher level of scrutiny to the evidence in a case such as this, which involves allegations of morally repugnant conduct: McDougall at para 45 . The evidence required to satisfy the balance of probabilities test must be “sufficiently clear, convincing and cogent” although there is no objective standard as to what constitutes sufficient evidence: McDougall at para 46 . [ 27 ] I do not find the Applicant has satisfied me on a balance of probabilities that family violence has occurred. This is not to say I find to her to be deceitful or worthy of disbelief.

I appreciate that situations involving domestic violence most often occur in private, shielded from public view and that evidence can be difficult to obtain. But I find that in this case, the Applicant has not led sufficiently clear, convincing or cogent evidence to allow me find that family violence has occurred. B.

Is There Reason to Believe that the Respondent will Continue or Resume Carrying out Family Violence? [ 28 ] The Applicant asserts she is afraid of what the Respondent might do in the future and that his Facebook posts are indicative of his continuing harassment and bullying of her. [ 29 ] The question I ask myself is whether, “after hearing from both parties”, I have reason to believe, “based on all of the evidence” that the Respondent will continue or resume carrying out family violence: NH , at paras 32-33 . [ 30 ] Even if I am wrong in concluding family violence has not occurred, I do not find on a consideration of the evidentiary record which includes the Respondent’s text message dated February 9, 2023, and his various Facebook posts thereafter, that the Applicant has established there is reason to believe the Respondent will continue or resume carrying out family violence. [ 31 ] According to the

preamble of the PAFVA , the objectives of an EPO include: to prevent family violence, protect victims of family violence and provide an immediate period of safety to victims of family violence. In my view, the purpose of the EPO is to minimize, as much as possible, the risk of future harm. In this sense, an EPO is remedial in nature rather than punitive. [ 32 ] The Respondent resides in Drumheller, a significant distance from where the Applicant lives in Three Hills.

There is no evidence the Respondent has stalked or followed the Applicant or has come within her vicinity other than for the purpose of facilitating parenting exchanges. While the Respondent should have carefully read the terms of the EPO, once the Respondent understood he was prohibited from communicating with the Applicant in any way, he stopped. None of his Facebook posts address or mention the Applicant and while the memes may very well reflect his feelings about her, I cannot conclude that their purpose or intent was to communicate with her or harass her.

In any event, the Applicant cannot claim she felt bullied by him when there is no evidence she was even aware of these posts. [ 33 ] I am satisfied the Respondent clearly understands that any breach of the no-contact provisions associated with the issuance of the criminal charges will imperil his parenting application. As I explained to him, he is well advised to steer clear of the Applicant and to desist from having anything to do with her other than as ordered by a Court in the family proceedings. C.

Should an Order be Granted by Reason of Seriousness or Urgency? [ 34 ] In my view, the landscape between the parties has sufficiently changed such that there is no longer any seriousness or urgency that would justify the confirmation of the EPO. The parties are physically separated and have not had any physical contact with each other since the granting of the EPO. Any short term or urgent need to physically separate the parties and keep them separated has long since been satisfied. The Respondent’s parenting of the Parties’ Child is subject to supervision and further court order.

The Applicant has not alleged that the Respondent’s contact with the Parties’ Child has in any way been inappropriate or has put her safety and health at peril. I recognize that the Applicant’s allegations have led to the Respondent being criminally charged and while these charges may be relevant to my assessment, they have yet to be determined and in the meantime, the Respondent is presumed to be innocent. [ 35 ] I cannot identify any consideration, including those enumerated in section 2(2) of the PAFVA , that would reasonably permit me to confirm the EPO on the grounds of seriousness or urgency.

D. Should the Court Exercise its Discretion to Grant an Order, including a KBPO? [ 36 ] In my view, the circumstances do not justify the granting of a KBPO or any alternative form of order such as (on the Respondent’s request) a Mutual No Contact Order. The issues sought to be addressed by the JP in the granting of the EPO, namely, to protect the Applicant from family violence, have been achieved (on her assessment that family violence had in fact occurred). I have not heard any complaints about the current parenting arrangement although this will need to be addressed in further court proceedings.

In other words, given the parties’ lack of contact with each other (except when parenting is engaged) and the lack of any evidence the Respondent intends to re-engage with the Applicant, what would an alternative form of order accomplish that the EPO hasn’t already? [ 37 ] Absent evidence that the EPO hasn’t achieved its desired effect, I decline to replace the EPO with a KBPO or with any alternative form of order. [ 38 ] Consequently, the EPO is revoked with immediate effect. [ 39 ] Counsel for TCJ will provide with me with a form of order by no later than 7 days from the date of this decision.

She may invoke rule 9.4(2)(c). Heard at the Town of Drumheller on October 27, 2023 Dated at the City of Calgary, Alberta , October 31, 2023. O.P. Malik J.C.K.B.A. Allison O’Brien appearing for TCJ DK, self-represented