IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Ms. D. came before the Court on an ex parte application on May 15th, 2014.  She had filed the Application on May 9th, 2014.  The Application had to do with one thing only and that was a Protection Order as against her ex-husband, R. D.  R. D. was not served with the notice of the hearing and partially, I think in fairness to all parties, it was my responsibility or lack of asking her specifically about why he was not served in a more elaborate manner, that is, asking more questions about service.  I think I made the error of thinking that she did not know where he was and that is why he was not served.  She was told by the Registry just come here and see what happens.  I do not think for a moment that she was misleading me; I think more precisely I was the one who should have questioned her a lot more thoroughly about that and I did not.  In any event, when the Order was made, it did say that he should have the right to come back here as soon as he wishes, upon giving her seven days' notice, and he could contest the legitimacy of that Order on the basis on which it was made and whether it should continue or be cancelled.

[2]           At the end of the hearing on May 15th, I did bring to Ms. D's attention that these Orders, if breached, can result in a criminal offence so the party definitely has to be advised of its existence, otherwise they could inadvertently be violating a Protection Order made by the Court without even knowing it was in place.  We discussed and I directed her that the Sheriffs would serve it and presumably that is what ended up happening.  I would think that probably sometime towards the end of May, Mr. D. found out about the Protection Order granted in his absence.  For reasons of practicality, availability of counsel, availability of money and so on, it does not end up coming back to the Court until November of 2014.  It comes back to the Court because Mr. D. serves Ms. D. saying that he wants to come to court to challenge that Protection Order that I made back in May of 2014.  He files the Application October 2nd, 2014, and they get a date here today for November the 13th.

[3]           The thrust of what I have to consider is, given the extra information that I have now from R. D. on top of the information that I had from Ms. D. back in May 15th, do I come to the conclusion that a Protection Order should be in place against Mr. D. to protect S. D. from any reasonable likelihood of some harm coming to her.

[4]           The Family Law Act in s. 184 provides some guidelines to judges, who are hearing Protection Orders to help decide whether there appears to be certain known risk factors that increase the likelihood of harm to the applicant.  These are general points.  They are guidelines but they are certainly not intended to be exhaustive guidelines.  They talk really about some risk factors.  In the past experience and in research, these factors have all been shown indeed to be risk factors in deciding likelihood of some form of physical or tremendous emotional damage to a victim who seeks the Protection Order.

[5]           In this particular case, I have to look at some of those or all of those guidelines that talk about whether there is a history of violence, is there a repetition of violence, which perhaps is the same thing, has there been some escalation in the level of violence, as time marches on, towards the person who is applying for the Protection Order, are there psychological and psychiatric problems with respect to him or her, are there mental health issues, are there other issues such as what have been found to be “trigger points”, financial troubles, being fired from jobs, drug addiction, access to weapons?  All of those things are important in assessing risk.  Also, the current status of the relationship.  Obviously, when parties first have a situation where one party announces they are leaving and the other party does not want them to go and/or when there are child custody battles, those are trigger points that put victims usually at risk.  Is something is going to happen when they are first served with divorce papers and they are first served with Protection Orders, when they are first served with applications for child maintenance and so on?

[6]           I look at the history here and look at those risk factors, past and present.  I have to look at the fact that these people, Mr. and Mrs. Dubbert, were married back in 1984.  They separated in 2009 but due to financial circumstances actually could not move into separate residences, so they remained in separate parts of the same residence insofar as bedrooms was concerned, but they also had common access to kitchens, living rooms and so on.  That continued all the way into October 2013.  We have a total then of 29 years where this couple or ex-couple have lived together.  I now ask, “Okay, what has happened during that time?”  Is there a history of repetitive assaultive behaviour?  Is there an escalation in the assaultive or emotional abuse?  Are there psychological problems that we know about?  Are there any health problems?  Are there any drug addiction problems?  Are there any current triggering events such as financial problems or a sudden application to terminate a relationship which one party wants to keep and the other does not?  After 29 years, there has been, according to the evidence I have, only one instance in October of 2013, where Ms. D. says that she was hit on the face by a newspaper that D. was holding.  Although on the surface, that seems minor, his hand was in the newspaper and when he took the swing at her, she says that his hands with the newspaper wrapped around, smacked her face and the newspaper fell to the floor.  She thought it was serious enough to call the police.  They charged him with assault.  They charged him with assault with a weapon.  Even at the time, she had asked, "Well, you know, what's the weapon here?"  The police had said, "Well, a newspaper can be if it's handled in this way."  He ended up being charged in October of 2013 with assault and assault with a weapon.  He ends up going to court in Vancouver.  What was the date again that he came to court?  It was...

[7]           MS. CHISHOLM:  It was January 27, 2014.

[8]           THE COURT:  Right.  Thank you.  January 27, 2014.  What happens, as often does, is on the day of trial the plea is changed.  The Crown decided to drop the assault charge, they will drop the assault with a weapon charge and instead he would admit to a non-criminal allegation and he would go on a Peace Bond for three months.  The fact is that I cannot, notwithstanding what I have heard from Ms. D., elevate his behaviour to constitute an assault or an assault causing bodily harm when the Crown saw fit not to register convictions or even that charges proceed in those two areas.  What her counsel says is that, at the very least, I should be able to accept the fact that in that court, Ms. D. acknowledged that she had reasonable and probable grounds to fear for him and that is why he consented to a Peace Bond being put into effect for a three-month period.

[9]           The question I have to deal with here is in November of 2014 and indeed in May of 2014, did she have both personal grounds and reasonable grounds to fear for her personal safety?  I look not only at the October 2013 incident but also their whole history together to see if, on an objective basis, I can say that she has reasons to fear that he will cause her some harm.  I do not doubt that she has felt since October of 2013 when she got whacked by him, that she feared him.  I have no doubt that she still does.  However, my task is not to put into place Protection Orders if a person fears the other party unless I am also of the view there are good reasons or reasonable grounds for her to be feeling that fear at the time and place the Application for the Protection Order is made and/or the time that the Application is made to cancel the Protection Order.

[10]        I look at the fact that he was on bail from October 13th, 2013 until January 27th, 2014, with bail conditions that he could not go to her house, he could not have any direct or indirect contact with her save and except for e-mails or by post, relating to the sale of their house or the enforcement of child maintenance payments.  There were no breaches at all between the time of October 2013 and January 27th, 2014.  On January 27th, 2014, he was put on a three-month Recognizance.  He also did not breach in any way shape or form the Recognizance and the Recognizance ended in April of 2014.  There is then about a three-week hiatus between the ending of that Recognizance or Peace Bond until she made her Application into our court on May 9th and finally being heard quickly on May 15th, 2014.  There were no instances of any violation by him during a time that he would have been well aware that the Recognizance to stay away from her had expired.  Obviously, the golden opportunity if that was something that he was just “waiting in the weeds” to do, would be after any risk of criminal charges expired and that would be after the expiration of the Peace Bond.  He did nothing in any way, shape or form during those three or four weeks where it was a window of opportunity, if you want to call it that.

[11]        She obtains the ex parte Protection Order on May 15th, 2014.  I am assuming that within a couple of weeks at least, he is advised of the Order being put in place.  That often, in fact, becomes a triggering event when somebody who has previous to this, never had any Protection Orders against them, suddenly gets really angry at the person who is putting it into place.  However, since May 15th, 2014, or let us say, two or three weeks after June of 2014, he knows about it but yet has done nothing in any way to go near her, call her or e-mail her, hang around her house or workplace and that is June, July, August, September, October and we are into mid-November.  Nothing at all has happened.  Counsel for Ms. D. says, "Well, don't take too much confidence in him not doing anything because he's been under Court Orders, be it Bail or Peace Bonds, to stay away from her.  And he only had a three-week period where he wasn't under an Order.  Counsel says that since May 15th, he's been under the Protection Order and so as long as the Court has control over him, he's not going to do anything.  But remove that and she then is in danger."

[12]        Is it reasonable or not, objectively, to say she has fears or should have fears of her being harmed by him?  I say that not only did he never assault her between 1984 when they got together, and 2009 when they separated.  Of course, during the time of separation there were lots of risk times there, nothing ever happened.  She also agreed, and I appreciate often couples do agree because of financial reasons, that she would stay in the house with him, albeit having as little contact as is possible, yet it is impossible to have no contact.  She agrees that he was safe enough to be in the house with her, from 2012 onwards until October of 2013 where, from her point of view, he that day exhibited behaviour that caused her to fear for her safety.

[13]        We also have, in the background, that there has been a Supreme Court Action started in 2009 that went from the separation stage all the way through January of 2012 when the Divorce was granted, so that is some three years where there must have been lots of trigger points during those times but nothing happened.

[14]        She has indicated that she changed the locks.  She has a lock on her bedroom because she fears for him.  However, in all the time he knew where she lived, and where she worked, at no time did he harass her, follow her, send her threatening notes or even do anything whatsoever that was not in compliance with what the Courts had ordered and that is something very important to realize.

[15]        He has also, and I am not sure what the dispute actually is, made his spousal payments, he has seen his children and has never abused her that I have evidence of, at least from 1984 onwards, save and except for this October 2013 incident.

[16]        The Supreme Court case, which is scheduled to be heard next week, will make an Order if they hear it that day, and if they are able to render a quick decision as to what is going to happen with the house.  The house is a house that is owned jointly by the two of them.  The house has been on the market since the divorce in 2012.  It has not sold and the indications I think I have heard here, are that there is some prospect as to the zoning being changed from commercial to residential and depending what that zoning is, there could be a huge windfall if it is zoned the right way.  There may not have been a strong desire on either party to sell the house.  It might have been that the price was too high even for the booming market, but nonetheless the Supreme Court will make their decision hopefully quickly next week.  Probably not quickly, but they will decide who gets the house and order some form of conduct of sale, then the house will be sold, maybe even bought by one or the other of them, I do not know.  The Supreme Court will have to make that decision.

[17]        I am only concerned here with one thing and, that is, when I made the ex parte order, I did it on the basis of what I was told by Ms. D.  I do not think at all that she lied, exaggerated or misled me but there are always two sides to every story and that is the reason that you allow the other side to come back before you to explain their side of the story.  Had I heard then, what I have heard now, I would be in the position that I am now, to say that I find that she has a personal fear of him doing harm to her as a result of what happened in October of 2013 but I cannot say that the fear that she has is objectively reasonable, given the absence of risk factors, as set out in s. 184 of the Family Law Act and also the long, long history of some 30 years now where only one instance of any consequence was brought before the Court.  I should add that it seemed a bit of a stretching by Ms. D. when she brought forward a 2009 offensive e-mail that Mr. D. had sent to some other people from their home computer.  She got a copy of that e-mail, it was largely misogynistic and rather disgusting language about women firefighters was used.  Although I listened carefully, and I did not like what I heard and thought it was obviously rude and stupid, it was not directed at her and, more important, there was nothing in that 2009 e-mail that in any way threatened harm to her.  If that was, as counsel for Mr. D. said,” the best that she can do,” that is not much ---something without threats and so long ago.

[18]        The final analysis is that, in my view, a Peace Bond (sic) should not be in place at this time and that I will cancel the Peace Bond (sic) that I made on May 15th, 2014, as of now.  The understanding, of course, is that they will go to the Supreme Court next week.  If either party want at that time, perhaps if there is something that I do not know about that they think about later and they want to make another application to Supreme Court which would make some sense after they know what is happening with the house division, then either party can make that application in the Supreme Court.  If factors are different, the Supreme Court Judge may see it differently depending upon how that Judge orders the sale of the house and also who is going to be living there.  I will leave that to that Supreme Court Judge if there is an application before him or her.  I do note that since 2009, no applications for Protection Orders were made in the Supreme Court since that action started and in all the time they have lived together, the only time an application for a Protection Order was made by Ms. D., was in May of 2014.  From an objective standpoint, her fears, although personally honestly believed, in my opinion, objectively, they are not soundly based so the Protection Order will be cancelled.