E.A.W. v M.J.M., 2012 NSSC 216

SUPREME COURT OF NOVA SCOTIA Citation: E.A.W. v M.J.M., 2012 NSSC 216 Date: 20120608 Docket: Hfx No 393422 Registry: Halifax Between: E.A.W. Applicant v. M.J.M. Respondent Judge: The Honourable Associate Chief Justice Deborah K. Smith. Heard: June 5 th , 2012, in Halifax, Nova Scotia Oral Decision: June 8 th , 2012 Written Decision: June 12 th , 2012 Parties: E.A.W. – Self-represented M.J.M. – Self-represented By the Court:

[ 1 ] On May 17 th , 2012, E.A.W. applied for an Emergency Protection Order pursuant to the Domestic Violence Intervention Act . According to the decision of the Justice of the Peace (JP) who heard the matter, Ms. W. was not seeking physical protection from the Respondent when she applied for the Order. Rather, she was seeking contact with her infant son. Despite the fact that there was no need to ensure the immediate protection of Ms.

W. or her son from domestic violence, an Emergency Protection Order was granted. [ 2 ] I have reviewed the evidence that was before the JP and have heard representations from both parties. For the reasons that follow, I have concluded that the Order in question should be terminated forthwith. FACTS [ 3 ] According to Ms. W.’s evidence, she and the Respondent (who lived in a common-law relationship for 2 ½ years) separated in February of 2012. They have a 21 month-old-son, B. [ 4 ] It appears that on April 7 th , 2012, the parties had an altercation. Ms.

W. testified that they had an argument about the use of the Respondent’s vehicle and money for their infant son. Ms. W. says that during the course of that argument, the Respondent, who does martial arts, tried to grab the car keys from her, twisted her arm and squeezed her forehead. She says that she tried to push him away and hit him and that he eventually knocked her over. Both parties called the police. Ms. W. testified that both she and the Respondent were charged with “domestic violence” and were placed on undertakings to have no contact with one another except by telephone in relation to their son.

The charges against the parties have not yet been heard. [ 5 ] Ms.

W. indicated that this was the first incident of physical violence in the parties’ relationship although she said that there had been a couple of occasions in the past when the Respondent had prevented her from leaving their residence during arguments by holding the door and, on another occasion, the Respondent allegedly broke the chain on the door of their apartment when she was trying to prevent him from getting in. [ 6 ] There was no evidence of any violence of any kind between the Applicant and the Respondent after the April 7 th , 2012, incident. [ 7 ] Much of the evidence given during the hearing before the JP involved Ms.

W.’s concern about her apparent inability to see her son. [ 8 ] Ms. W. testified that she stayed at home after the birth of B. and that she was his primary caregiver. Eventually, she started to work part time in the evenings. She testified that after separation she looked after B. during the day and the Respondent usually looked after him in the evenings (while Ms. W. worked.) At one point, Ms. W. asked the Respondent if he would look after B. for a few days in a row so that she could work extra shifts to save some money for an apartment. According to Ms.

W., the Respondent agreed but when the few days were up, the Respondent failed to return the infant to Ms. W.’s care and allegedly refused to allow Ms. W. to see her son. [ 9 ] Ms. W. retained a lawyer and filed an application in the Family Division of the Nova Scotia Supreme Court for interim custody and access, child support and spousal support. Ms. W.’s lawyer apparently asked that the matter be heard on an emergency basis. Due to the fact that Ms. W. had applied for child and spousal support, she was required to file financial information with her originating documents (see Civil Procedure Rule 59.24(1)(a)).

It appears that this was not done. According to Ms. W.’s solicitor (who gave evidence at the EPO hearing before the JP) she anticipated that Ms. W. would be coming into her office the afternoon that the EPO was applied for to sign the required financial information, which would then be filed with the Court the next day. Thereafter, a date for the hearing could be set. The Family Division had not yet confirmed whether they were prepared to treat the matter as an emergency. [ 10 ] At the time of the EPO hearing, Ms. W. advised the JP that she had not seen her son for over a month despite numerous attempts to do so.

[ 11 ] The JP who heard the matter was clearly concerned about Ms. W.’s apparent inability to see her son. In her decision she stated: In deciding whether to grant an emergency protection order, section 6(1)(

a) of the Domestic Violence Intervention Act directs that I may make an order “to ensure the immediate protection of a victim of domestic violence” if I am satisfied, first, that domestic violence has occurred. I am satisfied on this point. Section 6(1)(

b) then requires that I be satisfied that the order should be made forthwith; that is, without waiting for the other legal remedies that may be available to Ms. W. Ms. W. is not seeking physical protection from Mr. M. Rather, she seeks an order preventing him from continuing to deny her contact with their son. She indicated in her testimony that she does not wish to keep B. from his father but wants equal time with him. Emergency Protection Applications are all heard ex parte, over the telephone, and are a far from ideal way to determine issues of custody and access.

For this reason, Presiding Justices of the Peace are reluctant to exercise the power of a temporary custody order which is far better left to the Supreme Court Family Division or Family Court in most cases. Domestic violence can take many forms. Only some of these are recognized by the DVIA. If no domestic violence has occurred, there is no power to act. Here, there was an assault on Ms. W. and about a week later, a far more distressing development: since that time, Mr. M. has completely denied her contact with their son. The only reason given is that Mr.

M. feels he is the better parent and that he will permit Ms. W. to see B. after she moves out of the apartment he is paying for. More than a month has passed. Ms. W. has demonstrated scrupulous compliance with the law. She has done everything in her power to see their son. She has been to the police repeatedly. She has contacted his daycare. She has retained a lawyer and made application to the Supreme Court Family Division but still has no date for a hearing and no sense of when she will see B. again. Even if the Court grants a hearing on an expedited basis, it will be necessary to serve Mr.

M. and I expect it may be several more weeks before Ms. W. will obtain a hearing. I considered very carefully whether to simply leave the matter to the Supreme Court Family Division in due course. This would likely mean that B. would not see his mother – who is his primary caregiver – for more than two months. This represents 10% of his young life to date. Section 6(2)(

d) of the DVIA specifically requires me to consider [“] the best interests of the victim and any child of, or in the care and custody of, the victim.” I find that the current situation is manifestly not in B.’s best interests and cannot continue. Most parents would probably agree that having all contact with their infant child refused for more than a month is far more distressing and hurtful than a slap or a punch. Coming as it did on the heels of an assault I conclude that the two are related and that it is necessary in B.’s best interests and those of Ms. W. that I intervene.

B. should not be deprived of all contact with his primary caregiver any further. If there is a valid reason for Mr. M.’s actions, he is free to apply to the Supreme Court and seek a review of my decision. If there had been no domestic violence, I could not and would not intervene. If there had been only a short period of no contact, I would not intervene. If Ms. W. had not been the primary parent who had daily contact with B. since his birth, I would not intervene. If Ms. W. had not already availed herself of every legal option open to her, I would not intervene.

If the Supreme Court Family Division had indicated an intention to hear the matter in the next few days, I would not intervene. But in the circumstances of this case, I find that an order is necessary forthwith. [Emphasis added] [ 12 ] The JP declined to grant a custody order but did issue an order dividing parenting time between the parties. Ms. W.’s parenting time with her son was ordered to commence the day of the EPO hearing. [ 13 ] No further relief was granted. In particular, no relief was granted to protect Ms.

W. and B. against domestic violence. [ 14 ] The Emergency Protection Order was reviewed by Justice Simon J. MacDonald of the Nova Scotia Supreme Court on May 23 rd , 2012. That same day, an Order was issued pursuant to s. 11(3) of the Domestic Violence Intervention Act ordering a hearing of the matter in Supreme Court. That hearing was held before me on June 5 th , 2012.

[ 15 ] During the course of argument before me, it became clear that these two parties have very different views on what has transpired in relation to the care of their son. Mr. M. suggested that he had B. for an extended period of time as Ms. W. had failed to pick B. up on a number of occasions when she was supposed to do so and, in addition, she had allegedly indicated that she was not going to take B. again until the date that the parties were to attend court to plea to their assault charges. [ 16 ] Ms. W. indicated that she had no recollection of this happening and stated that Mr.

M. had suggested that they exchange B. at times that he knew that she was working and was not available. [ 17 ] I explained to the parties that I could not consider factual information that was provided to the Court during argument – but was not testified to – and that my decision had to be based on the evidence that had been given in relation to the application.

Having said that, the different positions taken and information given by these parties exemplifies the limitations of the ex parte hearing held before the JP and why it is preferable that a decision-maker hear from both parties to a proceeding before issuing an order. DOMESTIC VIOLENCE INTERVENTION ACT [ 18 ] In E.M.G. v. G.R.W., 2007 NSSC 356 , the Court reviewed the purpose of the Domestic Violence Intervention Act . This review bears repeating here. [ 19 ] The Domestic Violence Intervention Act , as its name suggests, is designed to protect individuals from domestic violence.

It is, in my view, an extraordinary piece of legislation in that it allows a Justice of the Peace to grant significant remedies to an applicant without any notice to, evidence from or representations from the opposing party. [ 20 ] Notice of and the right to be heard in a proceeding brought against you are fundamental tenets of our judicial system. They are essential components of a fair hearing. In limited circumstances (usually situations of urgency involving irreparable or serious harm) the court will proceed on an ex parte basis.

The Domestic Violence Intervention Act allows for this exceptional procedure in urgent situations where immediate relief is required in order to protect against domestic violence . [ 21 ]

Section 5 of the Domestic Violence Intervention Act defines domestic violence for the purpose of the Act. It reads: Occurrence of domestic violence 5(1) For the purpose of this Act, domestic violence has occurred when any of the following acts or omissions has been committed against a victim: (

a) an assault that consists of the intentional application of force that causes the victim to fear for his or her safety, but does not include any act committed in self-defence; (

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

c) forced physical confinement; (

d) sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation; (

e) a series of acts that collectively causes the victim to fear for his or her safety, including following, contacting, communicating with,

observing or recording any person.

(2) Domestic violence may be found to have occurred for the purpose of this Act whether or not, in respect of any act or omission described in subsection (1), a charge has been laid or dismissed or withdrawn or a conviction has been or could be obtained. 2001, c. 29, s. 5 . [ 22 ]

Section 6 of the Domestic Violence Intervention Act sets out the circumstances when an Emergency Protection Order may be granted by the Justice of the Peace as well as some of the matters that the JP must take into consideration when determining whether to grant such an order. It provides: Emergency intervention order 6(1) Upon application to a designated justice of the peace, the justice of the peace may make an emergency protection order to ensure the immediate protection of a victim of domestic violence if the justice of the peace determines that (

a) domestic violence has occurred; and (

b) the order should be made forthwith.

(2) In determining whether to make an order pursuant to this Section, the justice of the peace shall consider, but is not limited to considering, (

a) the nature of the domestic violence; (

b) the history of domestic violence by the respondent towards the victim; (

c) the existence of immediate danger to persons or property; and (

d) the best interests of the victim and any child of, or in the care and custody of, the victim.

(3) In determining whether to make an order pursuant to this Section, the standard of proof is to be on a balance of probabilities. 2001, c. 29, s. 6 . [Emphasis added] [ 23 ] The fact that domestic violence has occurred is not, in itself, sufficient reason to grant an Emergency Protection Order. In order to grant such an order the Justice of the Peace must determine that domestic violence has occurred and that the order should be made forthwith. The term “forthwith” is not defined in the Domestic Violence Intervention Act itself although regulation 2(2) of the said Act provides:

Interpretation 2(1) In these regulations

........

(2) For the purposes of clause 6(1)(

b) of the Act, “forthwith”means without waiting for the appropriate relief from the Provincial,Family or Supreme Court. [24] The Nova Scotia Domestic Violence Intervention Act has been considered on a number of occasions since its inception. InT.L.T. v. R.T., 2003 NSSC 251 Tidman, J. quoted with approval from Bella v. Bella (1995), (SK KB), 132 Sask. R.17 (Q.B.) where Justice Gerein stated at ¶ 12-13 in relation to the Saskatchewan Victims of Domestic Violence Act: Any violence, including domestic violence, is by its very nature serious.

However, the degree of seriousness will vary and this isrecognized in s. 3(1). By having reference to the seriousness of the violence the Legislature acknowledged that not all instances ofdomestic violence should trigger the extreme remedy provided by the Act. The violence must be of sufficient seriousness as to justify anemergency intervention. Alternatively, the situation must be of such urgency, which I read as meaning a real likelihood of violenceoccurring or being repeated, as to justify an emergency intervention.

Put otherwise, an order is not to be granted simply to alleviate unhappiness or discomfort or to improve a less than ideal situation,but only to provide protection in a situation of emergency............ [Emphasis added] [25] Justice Tidman in T.L.T. v. R.T., supra, went on to state at ¶29-35: ¶29. It is clear from the wording of S. 6(1) of the Nova Scotia Act that a determination of the occurrence of domestic violence alone isnot sufficient to warrant the making of an order.

Section 6(1) provides that upon finding that domestic violence has occurred, the justiceof the peace must go on to determine whether the order should be made forthwith. ¶30 Unlike the Saskatchewan legislation, there is nothing further in Section 6(1)(

b) of the Nova Scotia Act to guide either the justiceof the peace or the reviewing court as to what additional circumstances should be considered in deciding whether the order ‘should bemade forthwith’. ¶31 In determining the meaning of the phrase ‘should be made forthwith’, the court must look at the whole of the Act and extract ameaning consistent within that context. ¶32 Some guidance is given by the Legislature’s use of the limiting word ‘forthwith’. The use of forthwith connotes a sense ofurgency or immediacy.

The use of the word forthwith in that sense is consistent with the use in Section 6(1) of the phrase ‘to ensure theimmediate protection of a victim’. The same phrase is included in the residual clause (

l) of Section 8(1) of the Act whereby the justiceof the peace may ‘do any other thing that the designated justice of the peace considers necessary to ensure the immediate protection ofthe victim or any child’. ¶33 Perhaps most importantly in attempting to obtain some guidance from the provisions of the Act in determining whether an ordershould be made forthwith is the description of the order itself, ie. an ‘emergency protection order’. The term ‘emergency’is not defined in the Act.

The Concise Oxford Dictionary, 7th Edition, defines emergency as ‘a sudden state of danger, etc.’ and ‘condition needingimmediate treatment’. ¶34 I am in agreement with Kennedy, C.J. that the Saskatchewan legislation although not identical is very much the same as ours ashe stated in J.M.J. v. C.L.J. (supra) [EPO #084 (2003)] adopting the reasoning set out in paragraphs 12 and 13 of Bella (supra).

¶35 In my view, the Nova Scotia Act , like the Saskatchewan Act , is intended to provide a zone of safety for abused spouses in those cases where there is a realistic threat of immediate harm to the spouse or child. It is not the intent of the Act to provide a speedy alternative remedy to a spouse seeking exclusive possession of a matrimonial home. [Emphasis added] [ 26 ] In M.C.S. v. R.A.S., 2004 NSSC 60 , Associate Chief Justice Michael MacDonald (as he then was) held that the Domestic Violence Intervention Act is designed for “true emergencies”. (¶18). The logic of this is obvious.

It is only in true emergencies that one would be justified in granting the relief that is available under the Act without any notice to or representations from the opposing party. ANALYSIS AND CONCLUSIONS [ 27 ] As indicated above, the Domestic Violence Intervention Act is designed to protect against domestic violence. It is not intended nor is it designed to provide a solution to custody or access problems except to the extent that a temporary care and custody order may be necessary to ensure the immediate protection of a victim or child. [ 28 ] When Ms.

W. began testifying at the hearing before the JP she made reference to wanting an emergency custody order. The JP declined to award custody to Ms. W. but put in place a detailed parenting plan that would continue until June 15 th , 2012. [ 29 ] Of significance is the fact that no relief whatsoever was ordered protecting Ms. W. or B. from domestic violence. In making this statement, I am not suggesting that such an order should have been issued. There was, in my view, no evidence of an urgent situation that required immediate relief to protect against domestic violence.

However, the fact that no other relief was ordered points to the fact that the JP was attempting to deal with a difficult custody/access situation rather than protect against domestic violence. With respect, the Domestic Violence Intervention Act is not designed for this purpose. [ 30 ] While there appears to have been a physical altercation between Ms. W. and Mr. M. on April 7 th , 2012 (approximately 40 days prior to the Emergency Protection Order being applied for) there was and is no basis for an Emergency Protection Order in these circumstances.

The Order issued by the JP on May 17 th , 2012 is hereby terminated. Deborah K. Smith Associate Chief Justice