R. v. A.N.R., 2023 MBKB 81

Date: 20230516 Docket: FD 18-01-19687 (Winnipeg Centre) Indexed as: J.D.R. v. A.N.R. Cited as: 2023 MBKB 81 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: J.D.R., ) Michael J. DyckPetitioner/Respondent,) for the Petitioner/Respondent ) - and - ) ) A.N.R., ) Self-RepresentedRespondent/Applicant.) for the Respondent/Applicant ) ) Judgment delivered: ) May 16, 2023 THOMSON J.

Introduction [1] This matter proceeded before me, in which the Petitioner/Respondent (hereafter “the respondent”) seeks to set aside a protectionorder made December 8, 2022, by a Judicial Justice of the Peace (“JJP”), obtained by the Respondent/Applicant (hereafter “theapplicant”) for herself and two of her minor children from previous relationships (but not the child of these parties). [2] For the reasons which follow, the application to set aside is granted. In arriving at this decision, I am, of course, mindful that therespondent bears the evidentiary onus of proof (see: Baril v.

Obelnicki, 2007 MBCA 40). [3] Fundamental to an ex parte proceeding under s. 4(1) of The Domestic Violence and Stalking Act, C.C.S.M. c. D 93 (the“DVSA”), are the obligations (

i) that the applicant make full, fair, and complete disclosure, including as to any pending or recent familyproceedings involving the parties (see: S.C.H.S. v. K.S., (MB KB)), and (ii) that the JJP consider any informationavailable at the hearing from registry respecting any family proceedings involving the respondent (see: s. 6.1(2) of the DVSA).

Neitherof these obligations was satisfied in this case: - A copy of the final order (by consent) made April 20, 2020, was not put before the JJP (though its existence was disclosed, asrequired by s. 22), and the particulars of both that order, and of the current parenting arrangements and communications between theparties thereunder, were not honestly, or at least accurately, disclosed by the applicant; - Recent court proceedings (before me as both the case management and the variation hearing judge), including conduct of a trialresulting in my written decision of October 25, 2022, were not disclosed by the applicant to the JJP.

Neither was my then-pendingdetermination of costs of that proceeding disclosed; - The applicant failed to disclose that one of the two minor children subject of her application has been resident in the Province ofBritish Columbia for the past four years; and, - The JJP did not seek or consider information available from registry regarding all of these matters, while expressing regret thatshe did not have a copy of the final order to review (see: Transcript at p. T7, L36-37, and p.

T9, L32-34). [4] These circumstances alone are sufficient to warrant the setting aside of the protection order, as requested. [5] Further, with respect to the JJP’s consideration of the original application and of the evidence before her, and to the additionalevidence received by me in both affidavit form and viva voce, I also note the following, which support that disposition:

- I have difficulty accepting that the requisite seriousness or urgency of the circumstances was, or continues to be, present, in light of the historical and on-going communications between the parties (conditional upon the terms of the 2020 final order) in furtherance of their parenting of their child, E. (in respect of whom the applicant did not seek protective relief); - At the hearing before me (but not at the appearance before the JJP), the applicant testified that (

i) she had access to (but did not tender) a complete record of all communications which have passed between her and the respondent via the “Our Family Wizard” electronic application since the final order of April 2020, and (ii) she has maintained electronic video surveillance of her home, recording attendances by the respondent (also not tendered); - At the hearing before me, the applicant testified that there had been “no issues” with regard to the respondent since the December 8, 2022 protection order, and that there have been “cordial communications” between them; and, - The restrictions imposed upon the respondent under the terms of the protection order (as varied previously by Bock J. by consent, on February 9, 2023) impede the respondent’s liberty, including his ability to attend at his child’s school and at extra-curricular activities, and would impede his parenting time during the school summer vacation. [ 6 ] For all the foregoing reasons the respondent’s application is granted. _________________________ THOMSON J.