Supreme Court
Decision Information
Decision information:
Abstract: Transcript of a Hearing Pursuant to the Protection Against Family Violence Act
Decision Content
Hurst v. Matheson, 2008 NWTSC 84
S-1-FM2008000108
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
B E T W E E N:
MAVIS HURST
Applicant
- and -
MICHAEL MATHESON
Respondent
_________________________________________________________
Transcript of a Hearing pursuant to the Protection Against
Family Violence Act before The Honourable Justice L. A.
Charbonneau, at Yellowknife in the Northwest Territories,
on October 16th A.D., 2008.
_________________________________________________________
APPEARANCES:
Ms. Mavis Hurst: Appeared on her own behalf
by telephone
No Party Present: On behalf of the Respondent
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1 THE COURT: Can you hear me, Ms. Hurst?
2 MS. HURST: Yes, I can.
3 THE COURT: Ms. Hurst, you applied in
4 September for an Emergency Protection Order and
5 your application was granted by a Justice of the
6 Peace, and the order expires next week. But you
7 have sent documents to the Court registry where
8 you indicated that you would like to have this
9 order revoked, is that correct?
10 MS. HURST: Yes.
11 THE COURT: Now, in a revocation -- I
12 should tell you that pursuant to the Protection
13 Against Family Violence Act, normally for
14 hearings like this both parties have to be
15 served. And I take it Mr. Matheson has not been
16 served but if your request is to have this order
17 revoked, it is not going to affect any of his
18 rights so I am prepared to proceed on that basis.
19 MS. HURST: Sure.
20 THE COURT: In a revocation hearing, the
21 Court has to consider the evidence that was
22 before the Justice of the Peace when the
23 Emergency Protection Order was issued, as well as
24 any other evidence that is presented. So can you
25 tell me the reasons why you want to have this
26 order revoked?
27 MS. HURST: I, well I am, I have two young
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1 children and I find myself struggling with, I
2 grew up with no father and stuff and so did my
3 sisters and brothers and I don't that for my
4 children. I am just trying to work things out
5 and hopefully, 'cause I now longer have
6 addictions or, like I have been in sobriety for
7 many years and I understand that you, I cannot
8 tell somebody to do this and that for alcoholism
9 and stuff so. I was told by my addiction
10 counsellor here in Inuvik, you know, be more,
11 prayer, praying and stuff, so that's all I can
12 do.
13 THE COURT: So when the hearing proceeded
14 before the J.P., it sounded like at that time you
15 were thinking of maybe trying to get legal
16 assistance and maybe separate from Mr. Matheson.
17 Am I to understand that you are going to try to
18 see if your relationship can work out?
19 MS. HURST: Yes, we are.
20 THE COURT: And the reason, one of the
21 concerns that the Court has, Ms. Hurst, is that
22 of course all I have is the transcript of your
23 testimony, I don't have his side of events, but
24 when you were talking to the Justice of the
25 Peace, you talked about conduct that Mr. Matheson
26 had displayed, verbal and physical abuse directed
27 at you, but also verbal abuse and to some extent
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1 physical interference with your children as well.
2 So of course in the same way that you cannot
3 force another person to stop drinking, the Court
4 cannot really --
5 MS. HURST: Yeah.
6 THE COURT: -- well the Court can, but the
7 Court doesn't usually force adults to have
8 protection that they do not want. But when it
9 comes to children there is -- as I am sure you
10 understand, there are other concerns. So what
11 are your intentions if there were to be further
12 problems involving the children?
13 MS. HURST: Well, remove them and go get
14 help for understanding the abuse and protection
15 for the children. It's mainly for the children.
16 To recognize abuse and stuff, for people that are
17 in it and shouldn't be around it.
18 THE COURT: Where is Mr. Matheson now?
19 MS. HURST: He is in, I believe in Sachs
20 Harbour working.
21 THE COURT: Do you know when he is
22 supposed to come back?
23 MS. HURST: I think end of the month so.
24 THE COURT: So he's not going to be in the
25 community in any event between now and October
26 22nd?
27 MS. HURST: No.
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1 THE COURT: And was it your intention then
2 to try to reconcile with him when he returns at
3 the end of the month?
4 MS. HURST: Yes. Yes.
5 THE COURT: All right, thank you, Ms.
6 Hurst, I think that I don't need to ask you any
7 more questions.
8 Just for the record I am going to give my
9 decision and a few reasons related to it in case
10 someone one day wants to understand what happened
11 here today.
12 MS. HURST: Yeah.
13 THE COURT: So you should listen to this
14 carefully, and I think that I may ask the clerk
15 to make arrangements to have a transcript
16 prepared so that Mr. Matheson can be served with
17 it so that he knows what was said today and in
18 particular what I said, just because he is not
19 here so he is not able to hear me now.
20 MS. HURST: Yeah, m'hm.
21 THE COURT: These are my reasons for
22 decision on this application to revoke an
23 Emergency Protection Order that was issued on
24 September 22nd, 2008.
25 On that date, after having heard testimony
26 from the applicant, as well as brief comments
27 from a police officer who was assisting her, the
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1 Justice of the Peace issued an Emergency
2 Protection Order pursuant to Section 4 of the
3 Protection Against Family Violence Act. This
4 order was reviewed in this Court, as is required
5 by the Act, and it was confirmed, and the order
6 was made to last until October 22nd, which is
7 next week.
8 It appears from the transcript of the
9 hearing that the purpose of the Justice of the
10 Peace was to provide Ms. Hurst with some time to
11 make decisions and get herself organized to
12 decide if she would separate permanently from the
13 respondent, and this is why presumably the order
14 was made for a period of 30 days which is not the
15 maximum period of time for which these orders can
16 be made.
17 The applicant has now filed documents asking
18 for that order to be revoked.
19 It is provided for in Section 9 of the Act
20 that an Emergency Protection Order can be revoked
21 upon application by either the person who asked
22 for the order or on application of the person
23 against whom the order has been made. Although
24 the documents that were sent to the Court
25 registry were not in the proper form, I decided
26 to treat them as a request by the applicant for a
27 revocation hearing and I scheduled this hearing
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1 to proceed today.
2 As I said already, at a revocation hearing
3 the Court has to look at and consider the
4 evidence that was adduced in front of the Justice
5 of the Peace at the original hearing as well as
6 any other information or evidence presented at
7 the hearing. I have read carefully the
8 transcript of the hearing that proceeded before
9 the Justice of the Peace.
10 In that hearing, the applicant talked about
11 past incidents of violence involving the
12 respondent. The police officer who was assisting
13 her at the hearing confirmed that the respondent
14 was convicted in 2007 of assault and received one
15 day in jail and six months probation. The
16 applicant testified then that what prompted her
17 to make the request for the Emergency Protection
18 Order was that there was a very recent incident
19 where the respondent had become angry and was
20 being very verbally abusive to her and to the
21 children. And she also talked about various
22 instances in the past where similar things had
23 occurred. The Court is concerned about this
24 evidence because these children are very young.
25 They were born one in 2005 and the other in 2007.
26 There is no question that the conduct
27 described by the applicant does constitute abuse
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1 and does constitute family violence within the
2 meaning of the Act and that is why the Justice of
3 the Peace issued the order and that is why this
4 Court confirmed it. The applicant now wants the
5 Emergency Protection Order set aside. She wants
6 to have contact with the respondent and she wants
7 him to have contact with her and at this point
8 she has indicated to the Court that she hopes to
9 make the relationship work.
10 As I have said, the Court is concerned and I
11 am sure that the applicant understands why the
12 kind of conduct that was described at the hearing
13 is conduct that has a very negative impact on
14 children. I am mindful that we have not heard
15 any evidence from the respondent about his
16 version of events but it is of note that there
17 appears to have already been some involvement by
18 Social Services with respect to some problems,
19 and that there was in fact a Plan of Care put in
20 place that lasted for a number of months.
21 The applicant is entitled to apply to have
22 this order revoked and that's her choice, but
23 both parties need to understand that the kind of
24 conduct that was described at the hearing in
25 front of the J.P. is conduct that is harmful to
26 children. And especially if Social Services have
27 been involved in the past, it is likely that they
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1 will not hesitate to involve themselves again if
2 they were to find out that there is information
3 suggesting that the children are in need of
4 protection. I would say that if either parent is
5 verbally or physically abusive towards the
6 children and the other parent does not do
7 something to protect them, that leaves very
8 little choice to the authorities but to step in.
9 The Court sincerely hopes that it will not be
10 held against those involved but I make these
11 comments just so that it is clear to all that the
12 conduct alleged in this instance, not just toward
13 the applicant but toward the young children, was
14 serious and of concern.
15 I do take into consideration other things
16 that the applicant has said today. She has
17 struggled with alcohol and has been able to
18 overcome her addiction and has been sober for a
19 number of years. She also mentioned that to the
20 Justice of the Peace at the hearing back in
21 September. And she has indicated clearly her
22 intention to take steps to protect her children
23 if there is any further type of incident of the
24 kind that she referred to.
25 I also take into account that she has said
26 Mr. Matheson is actually not in the same
27 community as she is and is gone until the end of
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1 the month. Because this order would expire in
2 less than a week in any event, it probably does
3 not make that much of a difference to keep it in
4 place if Mr. Matheson is not in town. But the
5 main point here is that the legislation provides
6 a means for people to seek the protection of the
7 Court when they feel they need it on an urgent
8 basis. It is not there for the Court to force
9 protection upon people who no longer wish to have
10 it.
11 In light of the applicant's request, and
12 what she has told the Court today, I will grant
13 her application. I will revoke the Emergency
14 Protection Order that was issued on September
15 22nd, 2008.
16 I am going to ask the clerk to prepare an
17 order to this effect. I am going to ask that a
18 transcript of these reasons be prepared and that
19 the order and the transcript be served on the
20 respondent as well as on the applicant.
21 So that's all we need to do on this matter,
22 Madam Clerk, and we will close court. Good-bye,
23 Ms. Hurst, and good luck.
24 MS. HURST: Thank you.
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3 Certified correct to the best
of my skill and ability,
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5 Transcribed from an Audio
Recording provided to me,
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11 Lois Hewitt, CSR(A), RPR, CRR
Court Reporter
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