Supreme Court

Lacoursière v Penk 2017 NWTSC 8 Date: 2017 01 27 Docket: S-1-FM-2012-000100

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN MARIE-SOLEIL LACOURSIÈRE Applicant -and-

MARCO PENK Respondent Application for variation of access Heard at Yellowknife, NT: December 19 and 21, 2016 Oral decision at Yellowknife, NT: December 21, 2016 Written Reasons Filed: January 27, 2017 REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE K.M. SHANER

Counsel for the Applicant: Counsel for the Respondent: Counsel for the Children:

Margo Nightingale Self – Represented Michael Hansen

Page: 1 Lacoursière v Penk, 2017 NWTSC 8 Date: 2017 01 27 Docket: S-1-FM-2012-000100

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: MARIE-SOLEIL LACOURSIÈRE Applicant -and-

MARCO PENK

REASONS FOR JUDGMENT NATURE OF THE APPLICATION AND PROCEDURAL MATTERS [1] Ms. Lacoursière applied to vary the terms of a Final Order granted by Schuler, J., on April 30, 2015. Specifically, she asked that it be varied to:

a. terminate Mr. Penk’s access to the parties’ two children until such time as he is able to meet certain conditions; b. restrain Mr. Penk from having any contact with the children, Ms. Lacoursière, her husband; c. prohibit Mr. Penk from being within 50 feet of their residence, workplaces or schools, as the case may be; d. require Mr. Penk to seek leave from the Court before filing any future applications; and e. set out the pre-requisites to be met before leave will be granted.

Respondent

Page: 2 [2] The children are represented by Mr. Hansen, appointed through the Office of the Children’s Lawyer. They were previously represented by Ms. Wilford at trial and by Ms. McIlmoyle. Mr. Hansen supported Ms. Lacoursière’s application.

[3] Ms. Lacoursière was required by the Final Order to obtain leave to bring this application. Leave was granted on an ex parte basis.

[4] The application was brought on short notice on December 19, 2016. It was filed December 15, 2016 and served on Mr. Penk December 16, 2015. The Court heard submissions from Ms. Lacoursière’s counsel and the children’s lawyer on December 19, 2016. The matter was then adjourned to December 21, 2016 at Mr. Penk’s instance to allow him an opportunity to file and serve his own affidavit materials. He made his arguments on December 21, 2016. I ruled on the application later that day, giving brief oral reasons, and indicated written reasons would follow.

[5] Ms. Lacoursière’s application to terminate access was granted. BACKGROUND [6] Mr. Penk and Ms. Lacoursière have two children, E., aged 9, and F., aged 4. The parties’ history and the terms of the Final Order, which Ms. Lacoursière sought to vary in this application, are set out in Lacoursière v Penk, 2015 NWTSC 19.

[7] The parties’ relationship has been difficult. Schuler, J. described some unfortunate incidents between Mr. Penk and Ms. Lacoursière’s partner, Tony Collins. She also found that Mr. Penk had a propensity to criticize and complain about Ms. Lacoursière. Based on what was before me in this application, that continues to be the case.

[8] Mr. Penk is a German citizen. His current status in Canada is unclear. Ms. Lacoursière is Canadian.

[9] At trial, Mr. Penk sought joint custody, with parenting time to be shared if he was living in Canada, generous access and, assuming he was not living Canada, the ability to take the children to Germany.

[10] Ms. Lacoursière’s position was the polar opposite. She sought an order for sole custody with no access for Mr. Penk. This was based on her concerns about his mental health and how this might affect the children. It also appears she was

Page: 3 worried Mr. Penk’s animosity towards her and the conflict between them would have a detrimental effect on them.

[11] On the issue of Ms. Lacoursière’s concerns about Mr. Penk’s mental health, Schuler, J. indicated that she would require expert evidence before drawing the conclusion that he had “mental health issues”. No expert evidence was adduced on this point at that trial. Nevertheless, Schuler, J. highlighted a number of behaviours demonstrated by Mr. Penk which caused her concern about his judgment and his ability to control his anger. These included, but were not limited to, the following:

 inundating Ms. Lacoursière with email on an array of issues and complaining when she did not respond immediately;

 being highly critical of Ms. Lacoursière in the presence of the children and others;

 involving Ms. Lacoursière ’s friends and work colleagues in the parties’ relationship matters;

 sending an email to counsel for Ms. Lacoursière and counsel for the children to which he attached photographs of Adolph Hitler, Sir Winston Churchill, then Prime Minister Stephen Harper and myself, describing them as “destructionists” of his family and for which he could offer no logical explanation;

 his continued position that a court-ordered restriction on the children having contact with one of his close associates, Ron Tecsy, who was convicted of sexual assault against a minor was unreasonable;

 creating an expectation in E. that the children and Mr. Penk would take a trip to Germany, but for Ms. Lacoursière standing in the way of it; and

 Creating a high-conflict atmosphere which had the potential to interfere with the children’s well-being, particularly that of the older child, E.

[12] On the last point, Schuler, J. stated:

Page: 4 [93] I find as a whole that the conflict between Mr. Penk and Ms. Lacoursière is likely having a significant effect on E. and that this is manifested mainly in a change in his relationship with Ms. Lacoursière and what may appear to him to be a requirement that he choose between his parents. There are indications that E. has become unhappy with life in his mother’s household and is expressing views also expressed by Mr. Penk, for example, that he wants to go to Germany and that his mother is preventing him from doing so because she is mean, that she and Mr. Collins have lied in court to prevent him from going to Germany, that he wants to be a Penk and not a Lacoursière. Common sense leads to the conclusion that there is potential for harm to E.’s emotional well-being if this continues. The evidence also persuades me that it is Mr. Penk who is responsible for this state of affairs.

Lacoursière v Penk, supra [13] Based on the evidence in this application, it appears Mr. Penk has continued to engage in many of these behaviours since the trial concluded.

[14] On the question of whether Mr. Penk could take the children to Germany, Schuler, J. acknowledged that being exposed to their heritage and getting to know their relatives in Germany could well benefit the children. Ultimately, however, she determined that allowing Mr. Penk to take them to Germany would not be in their best interests. She based this on having insufficient information about Mr. Penk’s circumstances in Germany and his plans for taking care of the children while there. She was also concerned that Mr. Penk would initiate litigation in Germany if allowed to take them there, creating yet more conflict, and that he would be insensitive to their emotional needs arising as a result of being separated from Ms. Lacoursière and their community. Specifically, she stated:

[121] I also have a significant concern that if Mr. Penk is permitted to take the children to Germany, there will be more litigation in this case, possibly on an international level. I say this because of the amount of distrust between the parties and Mr. Penk’s unwillingness to accept court orders and his quick resort to the Court when he does not get his way (9 of the 15 notices of motion in this matter have been filed by him). Mr. Penk is quick to involve or threaten to involve authorities such as Social Services and the police when he is not happy with what Ms. Lacoursière is doing. I do not have any confidence that he would not similarly try to involve German authorities if he is allowed to take the children to that country, making the children’s situation more complicated and stressful.

[122] In addition, the children are still young and I am not at all confident that Mr. Penk would be sensitive to, and handle well, the emotional effect on them by reason of the separation from their mother. They have ready access to her in Yellowknife, where she is able to visit their school and attend their recreation activities. In Yellowknife the children also have access to people they know, such as hockey and soccer teammates, coaches, daycare providers and teachers. In

Page: 5 Germany, they have no supports and know no one except for Mr. Penk. Nor is it likely that skype access would work well; I have no doubt that Mr. Penk would view management of skype access from Germany as a way to “pay back” Ms. Lacoursière by making it a very difficult experience.

[15] Schuler, J. described the overall responsibility before her in these terms: […]There can be no doubt that there is a great deal of conflict in this family’s situation. The difficult question is how the Court can fashion a custody and access regime that will not increase the conflict, and is designed instead to keep the conflict from negatively affecting the children’s lives, so far as that is possible.

Lacoursière v Penk, supra, para 94 [16] Ultimately, Schuler, J. awarded sole custody to Ms. Lacoursière. She declined to grant Ms. Lacoursière’s request that Mr. Penk be denied access, however. Instead, Mr. Penk was granted specified access, subject to certain prerequisites, conditions and limitations. The stated goal was to maintain the relationship between Mr. Penk and his children, while at the same time lessening and controlling the negative influence he had on them and minimizing the level of conflict.

[17] The Final Order included the following terms respecting access:  A term outlining blocks of time during which Mr. Penk could exercise access, including approximately two weeks in July of 2015 and Spring and Christmas breaks in 2016. He would also have access on the third Sunday of the month if he was living in Canada, save for those months where he had larger blocks of access;

 A requirement that Mr. Penk exercise access within a 120 kilometre radius of Yellowknife and a prohibition against removing the children from that area;

 A requirement that Mr. Penk stay with the children at one of two designated homes in Yellowknife during access visits or, if neither of those was available, a requirement that he provide Ms. Lacoursière with forty days’ notice of where he would be staying, along with the complete address, landlord’s or owner’s name and contact information;

Page: 6  A direction that Mr. Penk not allow the children to have contact with Ron Tecsy;

 A requirement that Ms. Lacoursière drop off and pick up the children at the home where Mr. Penk would be staying and a term prohibiting Ms. Lacoursière ’s partner, Mr. Collins, from accompanying her to drop off and pick up the children for access visits;

 A term requiring Mr. Penk to deposit his passport with the RCMP for the duration of access visits;

 A term prohibiting Mr. Penk from attending at the children’s schools or daycares;

 A provision that Skype communications between Mr. Penk and the children would be at Ms. Lacoursière’s discretion entirely;

 A term allowing Mr. Penk to communicate with the children in writing or through video, subject to Ms. Lacoursière screening such communications and, if dissatisfied as to their suitability, returning them to Mr. Penk;

 A direction that neither party was to file any further applications for two years from the date of judgment, except with leave of the Court (which was granted for the purpose of this application);

 Restrictions on the subject matter on which the parties may communicate;

 A term prohibiting the parties from criticizing one another in the presence of or within hearing distance of the children; and

 A term prohibiting Mr. Penk from taking the children to Germany. [18] Schuler, J. impressed upon the parties the need to comply with the terms of the order and, despite the specificity of the order, the need to use common sense and to put the children first in the event of unforeseen circumstances.

Page: 7 [19] Mr. Penk was ordered to pay retroactive and ongoing child support, a monthly contribution for childcare expenses and costs in the amount of $25,000.00. As of the date of the hearing, none of these amounts had been paid. He was also ordered to provide Ms. Lacoursière a copy of his income tax return and any notices of assessment, or the German equivalent of same, by June 1 each year for the preceding taxation year, beginning on July 1, 2016.

[20] Mr. Penk appealed Schuler, J.’s decision and Final Order. That appeal is pending and, subject to variations I made following this application, the Final Order remains in effect.

THE EVIDENCE IN THIS APPLICATION [21] The evidence presented by Ms. Lacoursière in support of this application consisted of her own affidavit and affidavits from Marie Adams and Alan Bowerman. Mr. Penk filed his own affidavit in response. The key points of the evidence are summarized below.

Ms. Lacoursière’s Affidavit [22] Ms. Lacoursière deposes to several things happened following the Final Order which have led her to believe Mr. Penk now poses an unacceptable risk to the children’s well-being and that of herself and Mr. Collins. She feels access should be terminated.

[23] Ms. Lacoursière indicated that although the younger child does not display behavioural changes after access with Mr. Penk, the eldest child has made remarks which cause her concern. These are:

 Following an extended access visit in July of 2015, E. asked her why she would not allow Mr. Penk to buy him presents.

 After the same visit, when Ms. Lacoursière was driving in the car with E. and another child, he stated “calmly and seriously” and, apparently, without any precipitating event, that when he is ten he will throw himself in front of a bus and die. He has said this several times since, once in response to being told by Ms. Lacoursière he was being grounded.

 Following a visit in September of 2015, Ms. Lacoursière asked E. if he had fun, to which he responded he should not answer the questions

Page: 8 because she would use the information against Mr. Penk in court proceedings. Ms. Lacoursière deposed E. told her Mr. Penk did not tell him that, but that it was his own idea.

[24] Exhibit “A” to Ms. Lacoursière’s affidavit is a document Mr. Penk filed with the Court of Appeal. It is entitled “Memorandum to Judge” and dated June 14, 2016, attached to which is an Appendix. The document sets out Mr. Penk’s unfavourable views of the trial process and the result, along with assertions the trial judge was biased and used “degrading language” about him in her written decision. He also makes a plethora of accusations of unprofessional and criminal conduct on the part Ms. Wilford, Ms. McIlymole, and Ms. Lacoursière’s lawyer, Ms. Nightingale. These include (but are not limited to) allegations that:

 Ms. Nightingale’s husband stalked and spied on Mr. Penk for the purpose of gaining information to use against him at the trial;

 Ms. Nightingale stocked Mr. Penk electronically;  Ms. Nightingale falsified a court order;  Ms. Wilford fabricated an affidavit to “. . . alienate the court against me and in order to manipulate the outcome of the proceedings”,

 Ms. Wilford sought to destroy Mr. Penk’s relationship with the children, the children’s connection with their German family and culture and Mr. Penk’s “good standing in the community”; and

 Mr. Collins and Ms. Lacoursière’s mother fabricated complaints about Mr. Penk to the RCMP.

[25] Exhibit “B” is a copy of a letter and drawings (herein the “Letter”) which 1 Mr. Penk sent to Ms. Lacoursière, ostensibly for the children. She received it on September 15, 2016. It was written in German. Ms. Lacoursière was alarmed by the contents of the Letter and gave copies of it to her lawyer and the lawyer acting for the children at that time, Ms. McIlmoyle. She says she mailed the original back to Mr. Penk. She had a copy of the letter translated to English by a certified translator. The translation is included as part of Exhibit “B”. The translation is below:

1 Mr. Penk admits he wrote and sent this letter in his own affidavit.

Page: 9 2 Yellowstone Prison, [day and month cut off on scan] 2016 3 Dear (E), dear (F), I was unable to catch another fish – I was too busy breaking us free. After all, we want to be going to Germany, and there is still a lot I have to do to achieve that.

Manuel Neuer is the new captain of the world championship team, and we want to see him play soon. I wonder if Schweini [Bastian Schweinsteiger] and [Marco] Reuss will grumble when they hear what bad things the Canadians are doing to us?

Weinalden [Weihnachten – Christmas?] is soon upon us, and then two weeks in this Yellowknife Prison.

I actually think we should draw a picture of it. We’ll send it to all the people so that they realize all the bad things that are being done to us.

Right, kids? We’ll fight! We won’t let them get us down. [see hand-drawn faces] I love you a lot.

Your dad P.S. I’ve made copies of all the letters so that we can prove that the privacy of correspondence is being violated, and censorship exists.

[26] Included with the letter was a hand-drawn illustration of what appear to be a bat, a fox and a lion. There are words in German on the page, which are translated as follows:

If papa is a fox, then (F) and (E) also have to be little animals. Does (F) want to be a lion? What about (E)? Do you want to be a bat?

[drawing of bat] [drawing of fox] [drawing of lion] Dad (F) Each one of us can bite, and we are dangerous. [27] Exhibit “C” is a 259-paragraph affidavit Mr. Penk executed on October 20, 2016 and filed with the Court of Appeal. An exhibit of some 28-pages in length, entitled “Canada’s Dysfunctional Acts against Children, Families and Cultures – Canada’s Crimes Against Humanity” is attached to it. This affidavit and exhibit

2 The words in square brackets appear to be the translator’s 3 I have initialized the names of the children

Page: 10 contain numerous bizarre statements and serious allegations of abuse, conspiracy and criminal conduct against Ms. Lacoursière, Mr. Collins, Ms. Nightingale and her husband, Ms. Wilford and Ms. McIlmoyle, for which there is no apparent foundation. Many of the allegations Mr. Penk made in his Memorandum to the Judge (discussed above) are repeated in Exhibit C. In addition, Mr. Penk makes a number of statements regarding Canada’s treatment of First Nations children, equating to it his and his children’s current situation:

When my children and I celebrate 2016 Christmas in unlawful Canadian detention we celebrate this with the knowledge that the criminals who committed the crimes against the First Nation[sic] children and the alleged criminals and their helpers-helper who destroy family and culture live amongst us.

Exhibit “C” to the Affidavit of Ms. Lacoursière, at

[28] Ms. Lacoursière pointed to statements Mr. Penk made which suggest he intends to take the children to Germany. These include the following:

My children will return to Germany with me to be protected from the Canadian regime, to experience unrestricted opportunities, quality and free education, culture, humanity and protection of families, heritage and environment.

Exhibit “C” to the Affidavit of Ms. Lacoursière, at

[29] Also attached to Ms. Lacoursière’s affidavit are pieces of email correspondence between Mr. Penk and Ms. Nightingale and Mr. Hansen. In one email, dated November 21, 2016 (Exhibit “E”) he makes reference to a “Canadian disease”, and a number of other bizarre statements:

In my previous communication I introduced vocabulary to define the problems accurately. I introduced the term Canadian disease. The Canadian disease is very virulent and I will make every effort to contain it, including taking the matter to international authorities. I found Mr. Hansen’s introduction into the case very interesting and a good representation of the case’s past and future. Ms. Lacoursière and all her helpers lied in the witness stand and RCMP, which led to grave consequences for my children and me. One lier [sic] gives the door handle to the following lier, [sic] on which the virus seems to dwell.

[Referring to Ms. McIlmoyle] . . .Typical Canadian culture, harass and dominate other people and when resistance forms, the Canadian fell sick and cry out “now I am hurt”. You will understand that I as a German have no sympathy for your Canadian culture of domination and dishonesty, especially in view of the circumstances that you Canadians destroy other cultures and families.

Page A8

Page A16

Page: 11 I believe that his case is not a case individual vs. individual. I believe that you Ms. Nightingale and Mr. Hansen have embarked on a crusade against me, my children and our culture. Despite my concerns about your conduct, I will accept your apologies regarding the lies of October 28, 2016. If you decide not to apologies, I will proceed with legal and administrative action to address your unprofessional conduct. I will include media, the United Nations, international governments to address the unprofessional conduct and alleged corruption. At this point, Ms. Wilford, [Justice] Schuler, [Justice] Smallwood, Ms. McIlmoyle, Ms. Nightingale, Mr. Hansen and [Ms. Nightingale’s husband] have committed dysfunctional conduct that is obviously systematic and thus requires appropriate responses.

[30] The correspondence again contained a number of allegations and accusations, including the suggestion that Ms. Nightingale and Mr. Hansen lied in a court proceeding and that the presiding judge and Mr. Hansen have an “intimate, corrupt” relationship. At the hearing of this application Mr. Penk said he based this latter claim on the judge having been a Crown prosecutor prior to being appointed to the bench and being involved in criminal cases in which Mr. Hansen acted as defence counsel.

[31] Exhibit “H” to Ms. Lacoursière’s affidavit is a copy of email correspondence to Mr. Hansen, Ms. Nightingale and another individual dated December 9, 2016. Mr. Penk starts by making reference to an “RCMP Complaint” (which appears to be an exhibit to the affidavit he filed in response to this motion). Mr. Penk then states Mr. Collins will “murder” the children if they remain in Ms. Lacoursière’s care:

The violence escalates and the Canadian regime has no authority as we witness to stop the abuse and violence. I am very concerned that Collins will harm my children and murder my children and the other children when he again will spin out of control when the pressure in the court process intensifies. Especially when the children return in my custody I believe that Collins will murder them to prevent this.

We witnessed Lacoursière respond with an email yesterday that accuses me of violating the final order. This is the behavior pattern that dysfunctional and criminal individuals often exhibit. Bank robbers often take hostages and kill people when their option would only be surrender. Lacoursière is now under pressure by the RCMP Complaint and further legal steps. Lacoursière responds with aggression instead of admitting the offenses. The children are in harms [sic] way if they remain in Lacoursière’s house.