JNF v GGF, 2020 MBCA 67

Citation: JNF v GGF, 2020 MBCA 67 Date: 20200623 Docket: AF19-30-09285 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Madam Justice Lori T. Spivak BETWEEN : j. n. f. ) I. N. MacNair ) for the Appellant (Applicant) Respondent ) (via videoconference) ) - and - ) A. A.

Akin-Akinbulumo ) for the Respondent g. g. f. ) (via videoconference) ) (Respondent) Appellant ) Appeal heard and ) Decision pronounced: ) June 12, 2020 ) ) Written reasons ) June 23, 2020 NOTICE OF RESTRICTION ON PUBLICATION: An order has been made prohibiting disclosure of a person who is a party or witness in proceedings relating to an application for a protection order, or any information likely to identify the person (see section 13(1) of The Domestic Violence and Stalking Act , CCSM c D93 ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. hamilton JA (for the Court) : [ 1 ] The respondent (the husband) appeals the order of a judge of the Court of Queen’s Bench (the application judge) dismissing his application to set aside a protection order obtained by the applicant (the wife) pursuant to section 6(1) of The Domestic Violence and Stalking Act , CCSM c D93 (the Act ). [ 2 ] After the hearing of the appeal, we dismissed the appeal, with brief reasons to follow.

These are our reasons. [ 3 ] A justice of the peace granted the protection order on September 4, 2018, to protect the wife and her then 12-year-old child. The husband was served with the protection order on September 14, 2018. On September 28, 2018, he filed his application to set aside the protection order along with a supporting affidavit, in which he states several times that he is the “LEGAL SPONSOR, & the LEGAL GUARDIAN & the LEGAL CARETAKER . . . in Canada” of the wife and child. [ 4 ] The husband may only appeal the protection order on a question of law or jurisdiction.

See section 25(1) of the Act . [ 5 ] His position is that the application judge erred in law in two ways: 1. By not exercising his discretion judicially when he denied the husband’s request for an adjournment, resulting in a breach of his rights under

section 7 of the Canadian Charter of Rights and Freedoms ; and

2. The wife’s evidence did not meet the test for maintaining the protection order in place. [6] The wife’s position is that the appeal should be dismissed because: 1) deference is owed to the application judge’sdiscretionary decision to deny the husband’s request for an adjournment; and 2) the husband failed to meet the onus on him todemonstrate that the protection order should be set aside. The Adjournment [7] While waiting for Legal Aid to appoint counsel, the husband was granted two adjournments: on January 22, 2019,and February 27, 2019.

Counsel was appointed in late March. [8] On April 23, 2019, the husband appeared with his counsel (not counsel on the appeal) and sought a thirdadjournment. [9] Whether to grant the third adjournment was an exercise of discretion by the application judge. A discretionarydecision is reviewed on appeal according to a highly deferential standard.

As stated in Elsom v Elsom, (SCC), [1989] 1SCR 1367, “an appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judge misdirectshimself or if his decision is so clearly wrong as to amount to an injustice” (at p 1375). [10] The application judge took into account the relevant history of the two prior adjournments, the submission of thehusband’s counsel that she had reviewed the material and met with the husband, and lack of consent from the wife.

The record does notsupport the husband’s assertion that the application judge did not exercise his discretion judicially and as a result he was denied a fairhearing. Furthermore, he has not demonstrated how the outcome of the hearing might have been different had there not been anadjournment. [11] The husband has not demonstrated an error of law and the decision to deny the adjournment is entitled to deference.

The Test [12] The husband’s assertion that the wife’s evidence did not meet the test required to maintain the protection order iswithout foundation. [13] The application judge found that the wife suffered psychological and emotional abuse, which is a form of domesticviolence under the Act. See section 2(1.1)(

c) of the Act. This is a finding of fact that is not subject to appeal unless the husband candemonstrate an error of law in how the application judge reached that conclusion.

We see no such error. [14] In his oral reasons, the application judge summarised the parties’ history: they met on social media; the husband wentto the Philippines to meet her in person; they married there; the husband’s efforts over many months to complete the difficult andexpensive process to permit the wife to come to Canada with the child; and the husband’s stressful financial situation. [15] The application judge was not impressed with the husband’s evidence or his conduct during the hearing.

He stated thatthe husband’s evidence in direct examination was: . . . [A]brasive. . . . unresponsive. . . . rude. . . . didn’t answer the questions . . .. . . . he challenged and argued . . .. . . . [T]he common thread throughout his testimony and the impression I was left with was I paid for everything . . .. [T]hey owed him. .. . [16] As for cross-examination, the application judge stated that: . . . [I]t only got worse from [the husband]. It drove home to me that he’s controlling, he’s domineering, and he believes that [the wife]and [the child], owe him. . . . He treats them as possessions. . . .

There is no doubt in my mind . . . [the wife] suffered from bothpsychological and emotional abuse.

[ 17 ] As stated by Mainella JA in Ducharme v Borden , 2014 MBCA 5 (at para 11 ): A protection order can be set aside after a review hearing under the Act when it is “just or equitable” to do so.

Reasons to set aside a protection order include: full disclosure was not made when it was obtained; restraints on liberty are unnecessary, 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. . . . [ 18 ] The application judge noted that section 12(2) of the Act provides that the onus is on the husband “to demonstrate, on a balance of probabilities, that the protection order should be set aside”.

He concluded that the husband’s evidence “confirms for me that it’s necessary to maintain all of those conditions in the protection order. The evidence from [the wife], clearly demonstrates to me that she is still fearful for herself and her [child].” [ 19 ] Section 12(2) creates an evidentiary burden on the husband to “demonstrate, on a balance of probabilities, that it is just or equitable that the judge set aside the order” ( Baril v Obelnicki , 2007 MBCA 40 at para 127 ).

Although not stated specifically in this way, the application judge was clearly of the view that the husband had not met that evidentiary burden. Conclusion [ 20 ] The husband has not demonstrated that the application judge erred in law or jurisdiction. [ 21 ] Accordingly, the appeal was dismissed. The wife is entitled to costs based on Tariff B of

Schedule A.1 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R . JA JA JA