V.B. PETITIONER - v. -, 2023 SKKB 206

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 206 Date: 20 23 09 28 Docket: DIV-RG-00503-2022 Judicial Centre: Regina, Family Law Division BETWEEN: V.B. PETITIONER - and - S.V.B. RESPONDENT Counsel: W. Timothy Stodalka for the petitioner Rani Grewall for the respondent JUDGMENT RICHMOND J. September 28, 202 3 [ 1 ] The parties were married at Bangalore, India on December 25, 2008, and separated August 21, 2019. They had one child, A.B. born [REDACTED].

Following their separation, with the assistance of counsel, the parties negotiated a settlement agreement which they executed in early January 2022. The parties agreed to shared parenting which included how they should encourage the child to respect the other parent and spend time with the other parent. The matter was before me in June 2022 at which time, at the request of both parties, I granted an order incorporating the agreement into a parenting order. Although the order is silent as to whether it was intended as interim or final, the parties are of the view that it was intended to be a final order.

The mother has now applied to vary that final order. That, however, is not the question I am called upon to determine. [ 2 ] The King’s Bench Act , SS 2023, c 28 requires the parties to participate in mandatory dispute resolution. Initially, the mother took the position it was not a prerequisite to her application but has since conceded that as this is a variation of a final order, mandatory dispute resolution must occur prior to the matter being considered.

However, because an exemption is available in certain circumstances, the mother asks that she be relieved of the obligation of participating in the process. [ 3 ] The King’s Bench Act provides as follows: 7-4(6) On an application made with or without notice, the court, or any other person or class of persons prescribed in the regulations, may exempt a party from the requirement to participate in family dispute resolution pursuant to this

section if: (

a) there is a restraining order between the parties; (

b) a child of the parties has been kidnapped or abducted by one of the parties; (

c) there is a history of interpersonal violence between the parties; (

d) the party provides proof of attempts to engage the other party in family dispute resolution; or (

e) in the opinion of the person hearing the application, there are extraordinary circumstances. [ 4 ] The mother has applied for an exemption pursuant to s. 7-4(6)(c). The father is opposed. [ 5 ] The parties spent much time debating whether the application was procedural or substantive. If substantive, counsel for the father argues there was insufficient notice, and the mother should not be able to proceed with her application. The father has been aware of the mother’s application for some time and the application does not take him by surprise.

[ 6 ] The fiat arising from the judicial case conference held before Justice Stahl on May 4, 2023 provides, “The application for an exemption from the mandatory mediation process by both parties will be heard in Chambers on June 16, 2023 at 10:00 am as will the application for travel.” [ 7 ] The mother had also brought an application to vary parenting but had not complied with the minimum 45 day notice and the application was adjourned sine die . The application(

s) for exemption from mediation and the father’s application to travel were heard by Kuski Bassett J. on June 20, 2023. Justice Kuski Bassett found the following at para. 11, “I am satisfied that this is an extraordinary circumstance that justifies a temporary exemption from mandatory family dispute resolution so that the Travel Application may be determined.” She went on to state at para. 12, “This temporary exemption relates only to the Travel Application.

If the parties seek a further exemption before Ms. [B.]’s Variation Application is heard, that must be argued at a future time.” [ 8 ] On August 4, 2023, the mother served a notice of her intention to return her variation application to the chambers list on September 22, 2023 and also brought an application without notice which was filed on September 1, 2023 exempting the parties from having to participate in the mandatory dispute resolution or alternatively an order abridging the time for service of an application to exempt the parties.

The without notice application was served on the father’s counsel and a letter was sent by the father’s counsel to the court opposing the relief requested and asking the matter to proceed on notice. Schatz J. dismissed the without notice application and ordered the matter proceed on notice. [ 9 ] Counsel for the mother then brought an application for procedural matters returnable on September 15, 2023 for the exemption. The matter was adjourned one week as the mother’s counsel was ill. The father now suggests the matter is not properly before the court as there has been insufficient notice.

He argues an application for an exemption is substantive in nature and requires further notice than what was given. [ 10 ] The mother relies on the decision of Brown J. in Cabiles v Morin , 2021 SKQB 129 where at paras. 27 and 28 he states: [27] Therefore, the key task is discerning whether the changes affect substantive rights. I conclude that the rights affected here are not substantive in nature.

There is no loss of anything substantive such as the capacity to pursue the action itself through the interposition of a limitation period. … [28] … Thus, rather than going straight into court, there is now a requirement to first attempt resolution through mediation.

In the circumstances, given the language and intent of the relevant provision, the availability of an order exempting this step, and the impact on the parties, this is not affecting the substantive rights of the parties. [ 11 ] Counsel for the father argues that Brown J. was dealing with a preliminary question as to whether the legislation applied to a petition which had been issued prior to the mandatory dispute resolution coming into effect.

Although he acknowledges Brown J. discussed whether the application was procedural or substantive, counsel for the father argued Brown J. was not addressing his mind to the issue at hand. The father maintains that if a decision is made that there has been domestic violence and therefore the parties are exempt from mediation, the finding of domestic violence is then binding on the judge who hears the variation application.

Referencing Michel v Saskatchewan , 2021 SKCA 126 , he argues the principles of issue estoppel would apply and therefore the matter is substantive as a finding of family violence could affect the substantive rights of the parties in subsequent proceedings. [ 12 ] With respect to the family violence, a finding that there is interpersonal violence and a determination a party should be exempted from mediation, is not the same as a finding of domestic violence within the definition of the Divorce Act , RSC 1985, c 3 (2d Supp).

Under The King’s Bench Act , the concern is whether the parties can participate in the dispute resolution process. Is the process appropriate in the circumstances? The father argued in his family chambers appearance memorandum that his client had a statutory right to insist the parties participate in the mandatory mediation process. The mandatory dispute resolution process is intended to alleviate conflict and insistence on compliance should not be part of the arsenal of litigation warfare, particularly where there are allegations of interpersonal violence. The father’s substantive rights are not affected.

A finding of interpersonal violence for purposes of exempting the parties from the mandatory dispute resolution process does not determine the outcome of a variation application on parenting. Under the Divorce Act , the concern is always with the best interests of the child. Although the father’s treatment (or mistreatment as the case may be) of the mother is considered under the Divorce Act , it is not the focus of the analysis. Like Brown J., I am satisfied the mandatory dispute resolution provisions are procedural and proper notice has been received.

Since the father has been aware of the mother’s intention to apply for an exemption for months, he could not have claimed prejudice had there been short service in any event. [ 13 ] Similarly, the father argues a finding of family violence cannot be made at this time as Kuski Bassett J. ruled there was no violence that warranted the limiting of the father’s parenting time. The findings of Kuski Bassett J. do not have the effect the father suggests.

She found at para. 21, “In all of the circumstances, I am not satisfied that the length of the 2023 vacation, nor the continued or potentially worsening foul, offensive language of Mr. [B.], is a reasonable basis for Ms. [B.] to assert that the 2023 vacation is not in [A.B.]’s best interests…”.

Justice Kuski Bassett did not conclude there was no interpersonal violence but rather found that, in all the circumstances, going on the vacation remained in the child’s best interests. [ 14 ] On the application to exempt the parties, the father is adamant the parties should proceed to the mandatory dispute resolution process prior to the mother’s variation application being heard.

The father claims there is no family violence and suggests his actions do not fall within the definition of family violence as set out in the Divorce Act : 2(1) … family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or damage property; and (

i) the killing or harming of an animal or the damaging of property [ 15 ] The mother suggests his actions are harassment and psychological abuse and do fall within the definition. It is to be noted that The King’s Bench Act refers to interpersonal violence and makes no reference to the Divorce Act .

I am not constrained by the definition given in the Divorce Act but the mother’s suggestion that the emails and text messages she receives from the father are harassment and/or psychological abuse has merit. [ 16 ] In Anaquod v McLean , 2022 SKQB 134 , Haaf J. considered a situation where both parties sought an exemption on the basis of interpersonal violence: [9] As the Supreme Court of Canada stated recently in Colucci v Colucci , 2021 SCC 24 at para 69 , 458 DLR (4 th ) 183 : “[t]here is a trend in family law away from an adversarial culture of litigation to a culture of negotiation” (citations omitted).

Recent amendments to both the Divorce Act , RSC 1985, c 3 (2d Supp), and The Queen’s Bench Act, 1998 (s. 44.01) require parties, to the extent that it is appropriate to do so, to try to resolve family law disputes through an alternative dispute resolution process and out side the court structure.

One of the goals of these legislative changes is to reduce trauma to the children by reducing the conflict between the parties. [ 17 ] Haaf J. ordered the parties to attend mandatory dispute resolution and commented: [14] An important consideration is the use of the word “may” in s. 44.01(6) of The Queen’s Bench Act, 1998 . A history of interpersonal violence, a restraining order or other extraordinary circumstances may warrant an order for an exemption. An exemption, if the court were to find a history of interpersonal violence, is not mandatory.

Any form of interpersonal violence in and of itself does not, by default, exempt the parties from the dispute resolution process or mandate the adversarial process. [Emphasis in original] [ 18 ] Brown J. in S.L.L. v D.B.L. , 2022 SKKB 277 , 82 RFL (8th) 379 exempted the parties from mediation due to interpersonal violence and discussed the need to be aware of adequate protection for the parties stating at paras. 41 and 42: [41] While the violence is not all directed at S.L.L., it is directed at D.B.L.'s current partner.

It is not much of a stretch to be concerned in relation to it coming to be directed at S.L.L. if one is not cautious. One should not easily nor readily exempt matters from mandatory family mediation given the object of the legislation to work out solutions collaboratively and move towards cooperation despite the emotions which are so often involved in family breakdowns.

However, the necessary caution to this is at the same time to be aware of measures to provide adequate protection for the parties to a family dispute. [42] There is a level of violence that is in evidence here, as opposed to merely being suspicious, and therefore this situation meets the threshold set out for an exemption. At present, in this matter, that balance tips in favour of the protection of S.L.L. I conclude it is established that there is violence here of the type that makes the matter one that ought not to proceed to mediation, at least at this time.

That is not to foreclose that avenue in the future if additional evidence is provided or the situation changes from what it is now. [ 19 ] The question is, has the mother established a level of interpersonal violence that meets the threshold set out for an exemption? [ 20 ] The mother described the parties’ relationship while together which included frequent calls at work (18 times in a matter of minutes).

Yelling and hitting her, dragging her by the hair to the basement bedroom while she was still naked from her shower, breaking her laptop, dragging her down the stairs and throwing her from the home in winter without proper clothing and forcing the child to eat spicy food. These are but some of the examples of the abuse she claimed to have suffered while together.

The father has denied assaulting the mother while they were together and for purposes of this application, I have not considered the allegations of physical violence referenced above given they have been disputed and even if true, they would have occurred several years ago. [ 21 ] The parties separated in August 2019 and negotiated an agreement with the assistance of counsel which they signed in January 2022. [ 22 ] Despite having signed the agreement, the mother claims there continued to be problems and there were disagreements respecting the parenting

schedule and, in particular holidays. In March 2022, correspondence was sent to the father’s lawyer from the mother’s lawyer asking the father to refrain from texting the mother using inappropriate language such as calling her a “whore” and suggesting the parties begin using Our Family Wizard to communicate. Despite that letter, the father continued to berate her using foul language and Our Family Wizard was not put into use.

[ 23 ] Unfortunately, it is not uncommon for tensions to mount during negotiations of a settlement agreement, but the parties signed their agreement over a year and a half ago and yet, it appears, the father remains bitter and angry with the mother. The mother shared some of the more vitriolic messages she received: On Wednesday, February 1, 2023, the father wrote to the mother: Ungrateful Freeloading Whore, My son hates white food. Yes, you fucking lazy bitch, you heard me, my son hates white food. He told me to tell you that. He barely easts when he is there. I am concerned for his heath [ sic ].

He is constipated. You were always a lazy whore, who lived for free, ate for free, travelled for fee [ sic ], got a PHD for free, sued me for $350,000 (you made $230,000 during the 10 years of our marriage) and continue to take free money from me monthly to support your only son. Now, I hear your pimp is cooking white food for you? The least you can do is cook good Indian food for him using money I pay you rather being the lazy whore you always have been. You told my parents you would have a baby with me so you could get more money from me, I did not believe them. Clearly, I fucked up.

You are a disgrace to be a mother. Lazy bitch, get your act together. My boy is Indian. My boy is Konkani. Konkani’s love food. You can suck white dick and “wanna’ be a white whore all you want but my sons [ sic ] genes will always trump you trying to get him to be white like you. Feed my son proper food. The man who paid for the 10 years of your life, [V.B.] The mother responded at 11:40 a.m. the following day: Hello V., I need you to stop making assumptions and accusations about my cooking.

I am a vegetarian and I cook healthy meals for the whole family whether its Indian or not and I don’t feel the need to justify this to you. I also need to stop conditioning [A.B.] into thinking that my food is “white food” and unhealthy while you have no clue what I cook at my home. I need to you stop dragging [A.B.] into this. I know you are trying to turn [A.B.] against me, I don’t appreciate/tolerate this. You need to do better parenting. S. At 6:39 p.m., the father wrote: Ungrateful Freeloading Whore, You can go fuck yourself you freeloading nth [ sic ] rated whore. A lazy bitch will always be a lazy bitch.

You are only capable of living for free by whoring yourself out. Don’t use words beyond your vocabulary low life bitch. You need to be a better parent. A few days later, February 8, 2023, the father sent a text: 7:09 a.m. “Why the fick [ sic ] did you kot [ sic ] send his phone?” 8:26 a.m. “Why the fick [ sic ] did you take his red winter jacket out of his orange backpack? I want them delivered here today” 8:28 a.m. “You fucking dare remove my stuff out of his bag. He told you not to take it out and you did. Drop them both here today.” 5:40 p.m. “You fucking respond or I will call my lawyer.

You did not send my cell phone. You don’t charge it. You stole my winter jacket when he would have used it today.” The mother responded at 5:46 p.m.: Go ahead, I can see you are looking for drama as always! He has NEVER worn that jacket that you make him carry everywhere! His bag is already heavy enough. Within three minutes, the father responded at 5:49 p.m.: Don’t fucking care. My jacket. My bag. Don’t fucking take it out. Phone, where the fuck is it whore? You think I threaten about court. It is happening and soon.

Wait for it. [ 24 ] The mother made no response and at 6:40 p.m. the father wrote: “You have my phone or not whore?” [ 25 ] When the mother did not respond, he wrote, “You respond you low life cunt”. [ 26 ] The mother maintains that she has provided but a sampling of the abusive texts/emails she has received. Another was sent March 20, 2023 addressed to “Ungrateful Freeloading Whore”: “More free money for being the useles [ sic ] mother you are.” [ 27 ] The texts continue with the father calling the mother a “whore” and her boyfriend a “pimp”.

The mother asked to speak to their son after two weeks vacation with the father and wrote: “I am his mother and I haven’t seen him in two weeks. I can see all your empathy is dead.” The father replied to her the following day, February 27, 2023, “Yes, empathy for you is dead you heartless whore. I enjoyed watching that phone ring. He was asleep by 6:30 p.m. Jetlag. Again, you are a nanny whom I pay to watch, cloth [ sic ],

and feed my son, not his mother.” [ 28 ] On March 1, 2023 at 3:52 p.m. he wrote: “Send us watch you low life whore? You planning on stealing it?” At 5:36 p.m.: “Respond you whore? This is going to be fun. Did you not say you will destroy my life? You low life cunt? Maid. Whore. Count [ sic ]. Freeloader. Anything else you can think off?” [ 29 ] A few days later, on March 7, 2023 in response to a question about missing library books: “You must have stolen it? Runs in your family. Whores and maids.” [ 30 ] On the evening of March 11, 2023: “I called my don [ sic ] in yhe [ sic ] afternoon. No response whore.

You are hoping you be fucked you low life count [ sic ]. All this… court. It is a matter of time! Whore.” The mother respondent: “The phone didn’t ring today or yesterday. We were home.” To which the father replied: “Fuck you whore”. [ 31 ] The father then did a calculation of what he says was owing for support and signed the letter: “Enjoy, whore.

More Free Money”. [ 32 ] In his affidavit sworn June 2, 2023, the father deposed the following at para. 14, “I admit that I have sent inappropriate texts and emails to the Respondent both before and after the June 24, 2022 Court order.” He went on to suggest that he would be willing to communicate through Our Family Wizard to ensure respectful communications. Of course, the mother’s counsel had made that suggestion in her correspondence sent in March 2022.

Apparently, a year and a half later, the father now believes it to be a good idea. [ 33 ] The father claims they have unresolved issues and hopes a mediator can help them and is adamant the parties must proceed to mediation before the mother can proceed with her application to vary. It is difficult to reconcile the father’s current position of well-meaning parent intent on resolving differences with the mother in mediation with the writer of the texts and emails. Litigants are human and the odd outburst made in frustration can be explained though should not be condoned.

The materials filed are not indicative of the odd outburst but rather an ongoing rampage of vile name calling bent on degrading and controlling the mother. Considering the material, the father’s reasons for wanting to participate in the dispute resolution process appear disingenuous. The concern is that he is attempting to weaponize the process, create delay and provide a further forum to exercise his intimidation tactics. [ 34 ] The parties have not seen each other in person for a very long time. They do not speak on the phone. Their only communications are by text and by email.

The father does not dispute the vitriolic texts and emails but suggests the mother has filed no recent communications and, in any event, he claims these messages are not evidence of violence. I disagree. Interpersonal violence comes in many forms. Calling someone names, although inappropriate, may not amount to interpersonal violence. Here, however, it is apparent the father is attempting to exercise coercive control over the mother. By his words and the tone of his communications, he has attempted to dominate the mother.

I am not prepared to force the mother into mandatory dispute resolution when her safety cannot be ensured. The father’s emails and texts denote a volatility that is worrisome. The fact that the father, through his lawyer has conceded his communications were inappropriate but argues they are not evidence of interpersonal violence is telling.

He is clearly oblivious or indifferent to the damaging effect of his words. [ 35 ] In Menchella v Menchella , 2013 ONSC 965 , 43 RFL (7th) 402 , the father sought leave to appeal the decision of McGee J.: [ 13] McGee J. found that the totality of the texts constituted "violence" under section 24(3)(

f) of the Family Law Act [ Family Law Act , RSO 1990, c F.3 ] . She found there could be no doubt about their meaning or intention and that they were threatening, intimidating and that they "resolved some of the prior conflict in evidence and provide a rich context for the parties' relationship dynamic." She ordered that the wife have exclusive possession as of December 1, 2012. Leave was denied and the court stated: [48] "Violence" need not include a threat of physical violence.

Intimidation tactics such as the husband's callous comments about the wife's counsel can suffice because the effect is to attempt to undermine the wife's confidence in her counsel. Therefore, there is no reason to believe that "violence" in the context of section 24(3)(

f) cannot be found on the basis of text messages subject to the factual matrix in which the messages were sent and received. [ 36 ] The father in the present case is clearly engaged in intimidation tactics by the tone and vulgarity of his texts. Unfortunately, his demand for participation in the mediation process appears to be a weaponization of that process rather than a sincere desire to meet to diminish conflict. Like Brown J., I am not prepared to foreclose dispute resolution forever but the safety of the mother, both psychological and physical demand caution.

This may be a situation where high conflict mediation may assist the parties at some point but without the safeguards that process demands as well as the experience of trained high conflict mediators, it would be inappropriate. [ 37 ] The mother’s application for an exemption from participation in the dispute resolution process is granted given the evidence of interpersonal violence. The father shall pay the mother costs of $1,000. J. C.M. RICHMOND