IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In the style of cause to this action, M.W.M. is referred to as the Applicant and J.D.K. is referred to as the Respondent, and I will refer to each of them using those designations, even though each of them is an applicant in separate and crossing applications for a Protection Order under Section 183 of the Family Law Act.

[2]           The parties were never married, but were in a relationship together for a brief period of time. There are no children from this relationship. Both of the parties are asking that a Protection Order be made against the other, and each opposes the making of such an order against them. 

[3]           I will first summarize the law concerning the making of Protection Orders under the Family Law Act, before going into the evidence presented at the trial of this matter and my application of that law to these applications.

[4]           This court’s authority to make protection orders comes from Part 9 of the Family Law Act (“Protection from Family Violence”).  Under section 183(1)(a), the applicant for a protection order must be an “at-risk family member”, defined in section 182 as “a person whose safety and security is or is likely to be at risk from family violence carried out by a family member.

[5]           “Family member” is defined in section 2 as being

[6]           Family Violence is defined in section 2 as including:

[7]           In X. v. Y. 2015 BCSC 336, the British Columbia Supreme Court held that excessive email communication may justify a protection order if its frequency rises to the level of psychological or emotional abuse. Justice Sigurdsen wrote as follows:

[8]           In Morgadinho v. Morgadinho 2014 BCSC 192, Justice Schultes of the B.C. Supreme Court commented on the purpose of this Part of the Family Law Act. He wrote:

[9]           Under section 183(1)(b) of the Family Law Act, an application for a protection order can be made with any other proceeding under the Act, or it can be a stand-alone application.

[10]        For a court to make a protection order, subsection (2) of section 183 requires a determination by the court that family violence is likely to occur, and that the potential target of that violence is an at-risk family member. Section 184(1) requires the court to consider the following risk factors before making a protection order:

[11]        In Dawson v. Dawson, 2014 BCSC 44, Justice Barrow of the BC Supreme Court, made the following comments on the subject of assessing the likelihood of family violence occurring in future:

[12]        Where family members are seeking protection orders against one another, section 184(2) requires the court to decide if orders should be made against one person or against more than one person, taking into account the history of the parties, the potential for family violence, the extent of any injuries or other harm suffered, and the vulnerability of the applicants.

[13]        Subsection (3) of section 184 notes that the person who initiates a particular incident of family violence isn’t necessarily the person against whom an order should be made.

[14]        Subsection (4) also lists a number of factors which are not to be considered as impediments to the making of a protection order. These include the presence of criminal charges, a pattern on the part of the at-risk family member of returning to the home and living with the person who has committed acts of family violence against that at-risk member, and other factors.

[15]        Section 183(3) sets out the various conditions that can form part of a protection order under Part 9 of the Family Law Act. Subsection (4) states that Protection Orders remain in force for a year from the time they are made unless the order specifies otherwise.

[16]        Currently, under the Family Law Act there are three sets of Regulations passed. One pertains to the division of pensions, one pertains to miscellaneous matters under the Act and one pertains to the Hague Convention on the Civil Aspects of International Child Abduction. There are also Rules of Court which have been proclaimed. None of these directly address what is called the Protection Order Registry. This, according to information published on the BC Ministry of Justice website, is a confidential database containing all civil and criminal protection orders issued in British Columbia. According to current policy set by the BC Ministry of Justice, Protection orders issued in BC courts or by police are then sent to the registry and are entered in the registry database on the same day they are received. The police have 24-hour access to the Protection Order Registry and can obtain a copy of the order within minutes.

[17]        In this case, both of the parties are of the view that if they are the subject of a protection order made against them, this will have adverse consequences for their career prospects. It is unclear to me who, beyond police, court staff and those who maintain the registry, would have access to such information. In Morgadinho v. Morgadinho, supra, Justice Schultes also considered this aspect of the granting of a protection order, but like me, it was unclear to him how much of a consideration this was. He wrote:

[18]        As previously stated, the protection registry is not governed by any statute or regulation. The registry was established by the BC Ministry of Justice as a part of its policy designed to address the issue of family violence. On April 15, 1998, the Honourable Ujjal Dosanjh, the Minister of Justice and Attorney-General, made the following statement in the BC Legislature:

[19]        The Protection Order database is confidential, accessible primarily to police officers, corrections officers, court staff and others in the Ministry of Justice. It is not a public record and appears to be only accessible to prospective employers if that employer is a police agency or some branch of the Ministry of Justice, presuming that their employment hiring policy involved some sort of check of whether or not the applicant is subject to a court order.

[20]        Ultimately however, I agree that the approach taken by Justice Schultes is the correct one and the one I must follow. If an at-risk family member meets the criteria for entitlement to this kind of protection, that person should not be denied such protection because this might jeopardize the offending party’s employment prospects. It is really up to the person whose behaviour may be governed by a protection order to conduct himself or herself so that this will not be an issue for that person.

[21]        In summary therefore, I must first determine whether the applicants are “at-risk family members” as defined in section 182 of the Act. Then I must determine if family violence (as defined in section 2 of the Act) is likely to occur. Finally I must decide, on a consideration of the factors set out in section 184(1) of the Act, whether I should exercise my discretion to make one or more protection orders in this case.

[22]        The Applicant and Respondent met in December of 2013. They began dating and their attraction to one another grew to the point that they decided to move in together in April or May of 2014. Unfortunately, the parties realized that it was not best for them to continue the relationship, and they ended their relationship in February of 2015. There was no physical violence in the relationship, but there were arguments and issues of mistrust. The Respondent was unhappy that the Applicant had lied about his age in a dating website profile. The Applicant suspected that the Respondent was having an affair with the man who is now her current boyfriend. The Respondent testified that during the time she lived with the Applicant, there was no sort of romantic or intimate physical relationship with this man. She testified that during the relationship she had with the Applicant, she and her current boyfriend were just good friends.

[23]        The Applicant doubts this because he says that there was an element of secrecy in the communication between the two while he was living with the Respondent. He also states that during one argument, the Respondent brought up the subject of having sex with her then friend during a hike that the two of them were going on. The Respondent admits that she said something like this, but says that the Applicant has taken the remark out of context. According to her evidence, when the Applicant expressed concern about her and her friend going on a hike alone together, she sarcastically replied “What do you think we’re going to do, drop our pants and have sex?”

[24]        Deciding whether the Respondent was being unfaithful to the Applicant during their relationship or whether the Applicant was being unduly jealous of an innocent relationship is not the purpose of this hearing. By now the parties should have moved on and accepted the fact that their relationship is over. One impediment to their making a clean break from their relationship is the existence of a time-share contract that they had signed, and their efforts to sell the time share or get out of the contract. If their post-relationship communication was restricted to that subject, they would not be before this court. Unfortunately, this has not been the case.

[25]        According to the evidence of the Respondent, the Applicant would contact her under the pretext of discussing the time-share issue, but his communication would soon stray to inappropriate subjects. He would try to convince the Respondent to have sex with him. She testified that he wanted to turn their time-share conversation into an opportunity to have phone sex. She testified that she would try to steer the conversation back to the topic of the time-share, but he would refuse to do so, so she would hang up the phone. On one occasion, the Respondent testified that the Applicant wanted to talk about a bra that she had left at his place and how he had ejaculated on it.

[26]        The Respondent testified that the Applicant became obsessive with his constant calling, text messaging and email. She says that he began to call her at work, and when she asked him not to call her there, he would call other departments and ask to be transferred to the Applicant’s phone line. She testified that’s she blocked him on her cell phone. She soon received around 1000 emails from him during a three or four month period.

[27]        The Respondent testified that her mother agreed to act as a go-between so that she would not have to speak directly to the Applicant. He was not agreeable to this. The Respondent’s mother, a psychiatric nurse, testified that she tried to be an intermediary because she thought she had a good relationship with both parties. She said that she tried to give emotional support to the two during their breakup and be a good listener. But as the relationship became, in her words “more toxic”, she realized that there was little she could do. She testified that the Applicant did not want to deal with her, he insisted on speaking to the Respondent directly, even though he knew that she did not want to talk to him.

[28]        Shortly after this, the Respondent began to receive strange phone calls at her workplace. Some of these would simply be someone breathing into the phone. Sometimes she could hear papers shuffling, but no one was speaking. She has produced phone records which show that the Applicant has called her hundreds of times. For example, one phone record shows that he called her 52 straight times over a 26 minute span, and that he called her number at least 61 times on that day.

[29]        In April of this year, the Respondent woke up and was about to leave for work when she discovered that someone had slashed one of the tires on her car. At around this same time (though not on the same day), the Respondent was seen driving in her neighbourhood, once by her and once by her mother. The street that she was living on at the time was not a major thoroughfare and the Respondent did not live or work in that city. Her mother testified that she saw the Applicant driving in their neighbourhood the day after her daughter’s tire was slashed. The Applicant admits that he drove through the Respondent’s neighbourhood on one occasion, but says that he did so to visit a friend who also lived in the area. He denied slashing the Respondent’s tire.

[30]        The Respondent’s mother testified that she was concerned about some of the things that the Applicant was saying. On one occasion he spoke about jumping off of a bridge. On another he talked about getting a gun license. Although this was not said in any directly threatening manner, she felt that this was a not-so-subtle threat. She expressed concern about the volatility of the Applicant’s behaviour. She said “What I’m concerned about is the unpredictability of [the Applicant’s] behaviour. Sometimes he can be very appropriate and respectful. Other times he can be very angry and aggressive.”

[31]        The Respondent testified that on the advice of a police officer, she began to change the route that she took to drive to work. On another occasion she was out for a run, when she saw the Respondent. She testified that she has since changed her vehicle, her residence and her phone number, but that this only seemed to increase the flow of email from the Applicant.

[32]        The Respondent also became concerned after the Applicant attempted to contact and befriend, through Facebook, three young women who are friends of hers. The Respondent describes these young women as “petite blond females”, the youngest of which is fifteen years of age. The Applicant has denied that he attempted to do so, although printouts of Facebook entries suggest otherwise.

[33]        The Respondent testified that the Applicant’s behaviour has adversely affected her well-being. She has seen a counsellor for anxiety. Police officers that she works with have advised her that the obsessive and sexualized nature of the Applicant’s communication suggests that she is at risk of becoming a victim of sexual violence. Whether or not this is the case, this fear has added to her stress and has also put a strain on her new relationship.

[34]        The Respondent lives with her parents. She and her family have changed their residence since her conflict with the Applicant has arisen. She says that this was to get away from the Applicant’s harassment, although she acknowledges that her parents had been considering a move, but had postponed their plans to do so because of her father’s poor health. She says that the Applicant’s harassment caused them to move ahead of schedule in spite of the strain on the family caused by the move.

[35]        One particular communication which gave the Respondent cause for concern was a Facebook posting in which the Applicant stated that he had received a private arms license. This, coupled with the Applicant’s constant insistence that the two of them must meet in person, is of great concern to her. She also testified that the Applicant has complained to the Professional Standards Branch of her employer, and she is of the view that he is maliciously trying to sabotage her personal career aspirations.

[36]        The parties have attempted to resolve the time-share issue, but according to the Respondent, this has been hindered by the Applicant’s insistence that he had to meet in person and alone with the Respondent. When the Respondent arrived at one of these meetings with a family member, she took some documents to get copied. She says that the Applicant called the police and accused her of stealing the documents. The Applicant sent the Respondent a number of email in which he referred to her taking the document for copying as “theft of a legal document.” For some inexplicable reason, the Applicant seemed quite upset that the Respondent had made a copy of the time share documents. In an email he sent to the Respondent on August 16, 2015, the Applicant said “I require you to return any and all copies of this legal document so I can destroy them.”

[37]        Generally, the Respondent describes the Applicant’s constant requests to meet with her as “creepy”. On one occasion she claims that he asked for one of her bras so that he could use it as a “sex toy.” She also says that he kept requesting that their meetings end with a hug, something she felt unsafe in doing with him. On one occasion, the Respondent says that she responded to the Applicant’s request for a hug by saying “I don’t want to hug you, I want to punch you!”

[38]        The Applicant reported the Respondent’s comment about wanting to punch him to the Abbotsford Police Department and asked that the Respondent be charged with the offence of uttering a threat. The police officer who investigated the matter wisely concluded that the complaint was unfounded. An interesting note in the police report is the officer’s comment that the Applicant reported that the Respondent was “continuously phoning him to discuss finances.” Judging from the phone records, email and the text messages, it appears that the Applicant was not being truthful with the police officer when he made that statement. A review of the evidence presented at this hearing shows just the opposite, namely that it was the Applicant who was constantly contacting the Respondent, while she was repeatedly telling him that she did not want him to contact her. If the Applicant was not intentionally misleading the investigating officer, then he certainly lacked insight into what was actually happening with his communication pattern with the Respondent.

[39]        The Respondent testified that she would have applied for a Protection Order sooner, but she clung to the hope that the time-share issue would resolve itself and she would have no reason to talk to the Applicant any more. She is afraid that without a protection order, the unwanted contact from the Applicant will continue. The sexualized nature of some of the communications has caused her to fear that the Applicant will attempt to sexually assault her.

[40]        The Applicant testified that in May of this year, someone came to his home to threaten him. He believes that the person is an undercover Vancouver Police Department officer, possibly the Respondent’s current boyfriend. The Applicant testified that this followed his receipt of email from the Respondent’s friends asking him not to contact her. He says that he has emailed the Respondent telling her not to contact him. The Applicant testified that he is the one who is being bullied by the Respondent and her family. He testified that his concern is that the Respondent will use her contacts at the Vancouver Police Department and her brother-in-law, who has some sort of martial arts training, to hurt him.

[41]        The Applicant testified that he came out of a previous marriage amicably. In cross-examination, he said that his first wife had been unfaithful during the marriage but that this did not lead to any violent behaviour on his part. He said that he has entered into a new relationship and that he has no interest in rekindling his relationship with the Respondent. The Applicant testified that he took a month off of work as a result of the stress of the relationship. The Applicant testified that he is also concerned over the fact that the Respondent’s new boyfriend has been diagnosed with Post Traumatic Stress Disorder.

[42]        Despite the Applicant’s assertion that he has moved on from this relationship, the Respondent produced email records which suggest that the Applicant sent her at least 979 email messages. Her mother also produced a volume of emails and text messages from the Applicant. Many of these emails are about the time share, while some are addressed to third parties (and copied to the Respondent) in which the Applicant disparages the Respondent for “damaging the trust between us” and for “being uncooperative.” In others, he is insistent that the two of them have to be present to sign documents and many are an attempt for him to set up a meeting between the two of them together. The Respondent is clear in her responses that she is willing to sign any documentation required to resolve the time-share issue, but that she does not want to be present at the same time as him, and she does not want to meet with him. Conversely, the Applicant seems insistent that he and the Respondent meet together in person and alone. In one email, dated August 16, 2015, the Applicant says to the Respondent “I’m not coming unless you are the only one there.”

[43]        In some of the emails, the Applicant also talks about speaking to lawyers and states, in an email of August 27, 2015, that “they will be filing two orders against you and one to your family.” This is curious correspondence, given that this court file does not contain any applications by lawyers or any previous orders. The Applicant was unable to explain his basis for making such a statement. In an earlier email of August 26, 2015, he states “my lawyers are filing an injunction against you tomorrow morning.” This also appears to be a fiction.

[44]        The Respondent also produced records of text message conversations that she had with the Applicant. She testified that she felt uncomfortable with how often the Applicant chose to bring up sexual subject. A reoccurring theme in these messages is the Applicant’s desire for the Respondent to call him or meet with him, her unwillingness to do so, and his reluctance to accept that answer. His persistence continues even when she tells him that she is at work and is unhappy with his “texting me incessantly.” In one conversation, the Applicant texts the Respondent and says “So what? I asked a girl that cares about me about her bra. Big deal. Just wanted to know sizes for reference.” In another series of text messages, he tells the Respondent that he wants to meet with her for “two reasons”, namely to “go for a walk and give you your panties back”.

[45]        Several times in the course of text messaging, the Respondent makes it clear that she has no interest in maintaining any sort of dialogue or relationship with the Applicant. Despite her making this clear to him on several occasions, the frequent text messages from the Applicant persisted. Even when she texted the Applicant and told him that she was at work or was busy, knowledge of this did not prevent him from continuing to text message. On one occasion, when the Respondent told the Applicant that she was getting ready for work and could not talk, he responded by telling her “I still have it with your panties” and sent a number of follow up messages describing them. Finally, the Respondent texted this message: “Please send that document when you get home. Otherwise I will be in touch when I need signatures. I will do up the dirt bike contract and scan it to you to sign and send back when you can scan it at work. Please do not contact me otherwise. I wish you all the best but wish to have no further contact other than the signing of the timeshare contracts. Please respect my wishes.” Unfortunately, this did not end the barrage of further text messages.

[46]        In a subsequent series of text messages, the Applicant told the Respondent that he still thinks that she is “gorgeous” and added “you have no idea how much I think of your beauty. Like… drool”. Still later, he was upset with the Respondent for her complaint about his having a gun license. He asked her “why did you threaten my PAL?” to which she responded “You shouldn’t have a gun licence”. Further text messages continue to have an inappropriate theme, such as when he texted the Respondent and asked her “what are you in the middle of? Amazing sex?” He added, “Would like to snuggle you right now if I could.” He later sent repeated text messages to her asking her to unblock his number.

[47]        One troubling text message from the Applicant to the Respondent concerns the subject of shooting. In the exchange, he told the Respondent that he was “actually quite a good shot” and that he had “snapped a pencil from 40 yards without a scope.”  He then said “Why don’t you think I can’t have a license? Kinda weird.” Other text messages concern the Applicant’s interest in whether or not the Respondent is seeing someone new. This appears from the messages to be a one-sided concern. There is no indication that the Respondent was concerned about whether or not the Applicant was seeing someone new.

[48]        The Respondent also produced a series of text message exchanges between the Applicant and her mother. A recurring theme in these messages is the Applicant’s contention that he must speak with or meet with the Respondent directly and that it is not satisfactory to him that there be any go-between in his dealings with the Respondent.

[49]        The Applicant was cross-examined about whether or not he has a problem with alcohol. The Respondent testified that this was an issue which contributed to their breakup. The Applicant denies having a problem with alcohol, though he did acknowledge that he did receive a roadside driving prohibition which led to the installation of an “alca-lock” on the ignition of his vehicle.

[50]        The first question to be decided is whether the parties are “at-risk family members” as defined in section 182 of the Family Law Act. I accept the evidence of the Respondent that, for a time, she and the Applicant lived together in a marriage-like relationship. Although the Applicant stated at one time during his evidence that he and the Respondent never really lived together, he did not elaborate on this. The evidence of the Respondent was that she moved her things into the Applicant’s place and changed her address to his. I also note that since the Applicant is asking for a protection order, he cannot be seriously challenging this assertion, otherwise he would not be entitled to the order he is asking for. Whether or not this is a correct conclusion, I accept the Respondent’s evidence about her residency with the Applicant. I find that both of the parties lived together in a marriage-like relationship and therefore each of them is capable of falling within the definition of an “at-risk family member” under section 2 of the Family Law Act.

[51]        Next I must determine if family violence (as defined in section 2 of the Act) is likely to occur, based on a consideration of the evidence. I note that the definition of family violence includes “psychological or emotional abuse” and this in turn includes “intimidation, harassment, coercion or threats.” I am also mindful of what the British Columbia Supreme Court held in X. v. Y., supra, where the court found that excessive email communication may justify a protection order. The volume of such communication as well as its content may, in an appropriate case, may be considered to be psychological or emotional abuse as well as intimidation, harassment, coercion or threats.

[52]        In this case, I find that the Applicant’s conduct towards the Respondent falls within the definition of psychological or emotional abuse and therefore within the definition of family violence under section 2 of the Family Law Act. The following aspects of that communication lead me this conclusion:

[53]        It has not been proven that it was the Applicant who slashed the Respondent’s tire, though that is certainly the Respondent’s theory. It has been proven however that this occurred at a time when the Applicant was frequenting the Respondent’s neighbourhood. Taken by itself, this likely would not justify the granting of a protection order. But when considered in conjunction with the other factors mentioned however, this adds to the atmosphere of intimidation which exists in the mind of the Respondent and adds support to the justification for the granting of a protection order in the Respondent’s favour.

[54]        I am not satisfied that grounds have been made out to support the granting of a protection order in the Applicant’s favour. The barrage of telephone and other electronic communication appears to be in one direction only, while the record supports the finding that the Respondent was not trying to harass or intimidate the Applicant. She was in fact trying to end communication between the parties. It is difficult to imagine that the Applicant could feel violated in some manner by communication from the Respondent when the documented record shows that it was him who was consistently demanding that such communication take place.

[55]        A review of the record puts the Respondent’s comment about wanting to punch the Applicant into proper context. The records of the Abbotsford Police Department suggest that the Applicant did not feel threatened by the remark, and that he only wanted it to be recorded. It has been so recorded. It has not been shown that the Respondent had prior knowledge of, or was in any way complicit in the visit that the Applicant received from the person he believes to be an undercover Vancouver Police Officer. Nothing disclosed in the evidence shows any conduct on the part of the Respondent toward the Applicant that would fairly fall within the definition of family violence without contorting that definition.

[56]        Finally I must decide, on a consideration of the factors set out in section 184(1) of the Act, whether I should exercise my discretion to make one or more protection orders in this case. In considering these factors, I note that there has not been any history of family violence in this relationship, in the sense that there are no instances of assaultive behaviour or of direct or explicit threats made. I am concerned however over the escalating nature of the Applicant’s persistent communication with the Respondent, its sexual themes, its allusion to the Applicant’s proficiency with guns, and its demanding nature that the Respondent had to meet with and talk to the Applicant when she had clearly expressed her unwillingness to do so. The Applicant’s lack of respect of the Respondent’s wishes that he not contact her at work is also troubling. I am also concerned by the Applicant’s apparent lack of insight into his conduct and how it might unsettle someone or otherwise be psychologically abusive.

[57]        I am mindful that the parties are no longer in a relationship. They each seem to have moved on to new relationships and that there are no children and therefore no issues pertaining to children that require continued communication. I am also satisfied  that any unresolved property issues can be addressed with indirect contact and that each have suggested appropriate agents through which any communication on these issues can go through.

[58]        I am concerned that the Applicant may have issues concerning his alcohol use and that he may be in denial about how this has affected his better judgment. This is a factor which may increase the risk of family violence if not properly acknowledged and addressed. I am also mindful of the Respondent’s perception of risks to her own safety and security. On a review of the communication that the Applicant has had with her, that concern is understandable and should not be minimized.

[59]        Having considered all of the factors under section 184(1) I am satisfied that it is appropriate that a Protection Order be made in the Respondent’s favour. I have considered the possible implications that the making of such an order may have on the Applicant. I am not convinced that this will have an adverse effect on his employability, given the confidential nature of the Protection Order Registry. Even if I am wrong in this conclusion, the law requires that such considerations must not trump the Respondent’s right to the protection granted by such an order where, as in this case, I have found her to be an at-risk family member who is entitled to such an order.

[60]        For the foregoing reasons, I now make the following order: