A former cop convicted of domestic violence is keeping daughter from ex but judge refuses to enforce the law
Even though former police officer David Martin was on probation for domestic violence offences when he began withholding his daughter from his ex-wife, a Lethbridge judge has refused to enforce a court order.
It's now been more than a year since Lisa Martin has seen her 10-year-old.
"It's just an overwhelming feeling of loss," says Lisa.
In fact, David was facing charges of stalking, possession of a knife, death threats and criminal harassment when the judge awarded him 50/50 custody of their kids even though an emergency protection order was in place.
Court of Queen's Bench Justice Dallas Miller — who has ruled that only he can preside over the couple's family court case — is the one person with the power to compel David to respect the court order.
Conflict of interest claim
But the judge has refused to do that.
Lisa believes it's because he admires David's jobs within the justice system as a former police officer and current jail guard.
She said the injustices feel like they're piling up.
The judge has also refused to address what appears to be a blatant conflict of interest. He assigned a woman to make recommendations as to how much time Lisa should spend with her daughter, despite the fact that the woman is friends with David's girlfriend.
'Legal abuse'
Every time David walks into Miller's courtroom, he gets what he wants, says Lisa.
"As soon as [David] knew Miller would do what he wanted, he withheld my daughter," said Lisa.
"I'm not a criminal, I haven't done a crime, I have no charges against me… and yet my ex has [custody] and I've lost custody."
The couple has three children; two are now over the age of 18.
CBC News is not using the real names of the family members involved in this case to protect the children.
"This case appears to have many of the hallmarks of what is often called 'legal abuse,' 'systems abuse' or 'court harassment,'" says University of Calgary law professor Jennifer Koshan, who specializes in family violence and family law.
"It is not uncommon for abusers — typically men — to use the legal system to further their abuse, often in the family law context."
Koshan says literature and the courts are slowly starting to recognize this type of abuse.
'Inappropriate' to withhold child
Lisa last saw her daughter Kit on Feb. 27, 2021.
The judge said in a November 2021 court order that he would not enforce Lisa's parenting time because she owes $4,500 in lawyer costs that have been awarded against her.
But Koshan says that's not right.
"I think it is inappropriate for a court to withhold a parent's access to their child until they pay court costs," said Koshan.
"Access should be based on what is in the best interests of the child, and withholding parenting time based on failure to pay costs contradicts that principle."
'More to this matter'
Judges are not permitted to speak publicly about cases they preside over.
In an email to CBC News, David's lawyer declined to answer specific questions asked of his client, saying he wouldn't discuss a case that is actively before the courts.
"The matter is proceeding through a proper forum, and [Lisa] has had several competent counsel representing her throughout the process."
"There is abundantly more to this matter than [Lisa] has likely advised," wrote lawyer David Popovitch. "The court has been presented with substantial reciprocal evidence on behalf of both parties outlining the history of this matter, and to date."
Domestic violence charges laid
The former couple's conflict ramped up in March 2019.
Although they had broken up months earlier, Lisa and David physically split that month, with Lisa leaving their shared home.
She began dating someone. Emails and text messages from David show he was angered by her new relationship.
Over the next two months, court documents show David was taken into police custody twice over mental health concerns.
On April 18, 2019, David sent Lisa a text message, which has been viewed by CBC News, threatening to kill himself and her boyfriend.
She called police.
When officers found David, he was drunk and outside her apartment holding a knife.
Judge forces in-person meet despite protection order
Court records show David was charged with seven offences, including possession of a weapon, death threats, criminal harassment and stalking.
Within days, Lisa went to court to get an emergency protection order with the help of Lethbridge police Const. David Warner, who gave evidence of the risk she was facing.
Court of Queen's Bench Justice Michele Hollins granted the order.
Two months later, while still facing criminal charges and under court orders that he stay away from Lisa, documents show Justice Miller awarded the father 50 per cent custody of the children.
Miller said the two parents had to meet in person to do the exchange, according to a court order.
Eight weeks after that, the judge quashed the emergency protection order.
Lisa says Miller told her she'd sought the emergency protection order "maliciously and frivolously" despite the Lethbridge Police Service (LPS) domestic violence unit suggesting she do so and providing an officer to give testimony in support for the emergency order.
Judge refuses to release transcripts
In an effort to verify some of Miller's comments during various court proceedings, CBC News requested court transcripts.
Upon learning of those requests, Justice Miller refused to release the transcripts.
Lisa then requested the same transcripts.
As is one of the parties involved and as a self-represented plaintiff, Lisa should be entitled to those documents.
The judge again refused to allow the Transcript Management Service to allow Lisa to pay for and access her own court documents.
Miller has required both CBC News and Lisa to make an application before him before he will release the transcripts.
David's charges go through mental health court
Back in criminal court, David pleaded guilty in October 2020 to two of the seven charges he faced.
But his case was allowed to be diverted through mental health court. That meant he was placed on a peace bond and faced no sentence beyond a one-year probation order.
He was under conditions from October 2020 to October 2021, including that he have no contact with Lisa and not go within 200 metres of her home.
David was also bound by a condition that he "keep the peace and be of good behaviour."
Four months later, while still under court conditions, David began withholding his daughter from Lisa.
Breaching a court order is a criminal offence.
The 'countdown texts'
In the lead-up to David withholding Kit, Lisa says he began constantly texting his daughter while she was with her mother.
He would send a series of what Lisa calls "countdown texts," marking the time until Kit was back with him.
Screen grabs of Kit's cellphone show David's messages to his daughter. Messages that most often went unanswered.
"5 hours!" then "4 hours!"
"3 hours and counting!" he wrote.
"2 hours and thirty minutes til you're home," reads the next.
"Less than two hours! Then back with your family."
"One hour!!!!!"
'Alienation of the children'
In other conversations, David seems to express frustration that his daughter is not replying to his messages.
"Hope mummy lets you have your phone," he wrote on one occasion.
"Really sad mummy took your phone away from you and you can't talk to me."
"It would be nice to talk to you without Mummy listening in and telling you to hang up with after less than a minute."
Lisa says, and her support worker confirms, that she has tried to show the judge that David is actively alienating her children against her.
In a July 8, 2021, letter to Justice Miller, Lisa's former lawyer tried to get the judge to acknowledge the issue.
"There are substantial questions regarding [David's] ability to abide by orders and his alienation of the children," wrote Spencer McMullin.
David accused Lisa of assault
Ten days before David began withholding Kit from her mother, the former couple met on Feb. 17, 2021, in a Tim Hortons parking lot in Lethbridge to exchange their daughter.
As David reached into Lisa's vehicle to retrieve his daughter, video appears to show him backing into Lisa as she stood at the driver's side door.
David called Lethbridge police and reported that Lisa had assaulted him.
The next day, according to an LPS "occurrence report," police dropped the investigation.
"Cst. Holland spoke with [Lisa] and advised her that Cst. Holland would be concluding the assault investigation against her," reads part of the report.
"Cst. Holland advised that police did not believe she assaulted [David]."
'I will not be having her returned'
Lisa has tried to get the judge to enforce the order that she spend time with her daughter. Not only will Miller not enforce Lisa's parenting time, she says he also refuses to add a police enforcement clause.
It appears David is well aware of this fact and has used it to his advantage.
On June 4, 2020, before he began withholding their daughter, David wrote Lisa an email saying he planned to keep Kit for an extra week.
He wrote that she had no right to enforce her court-ordered parenting time.
"I have made the decision to keep [Kit] with me next week. I will not be having her returned on Sunday. I realize you will do what you normally do and call the police, however I will advise you there is no police enforcement clause," wrote David.
David accused of assaulting Indigenous man
Despite working within the justice system, David has a long history of conflicting with the laws he is tasked with upholding.
In 2011, he was working as a Calgary police officer.
That summer, court records show he was charged criminally with assaulting an Indigenous man he had arrested at the Calgary Stampede.
In 2014, David was ordered to stand trial following a preliminary inquiry, a hearing to determine whether there is enough evidence to send a case to trial.
But the next month, the Crown inexplicably dropped the charge.
The Police Act charges also disappeared after David quit the Calgary Police Service in 2014.
The Calgary Police Service (CPS) confirms David was suspended with pay in 2011 and said "it does not appear he came back to work prior to his resignation."
Friend of David's girlfriend allowed to assess Lisa
David now works as a jail guard at the Lethbridge Correctional Centre.
That's where he met his new spouse, a woman whom CBC will identify as Helen. The two live together as common-law partners.
Lisa feels one of Miller's most egregious decisions was to allow a close friend of Helen's to complete parenting assessments.
Screen grabs of photos from Facebook show Erin Rusnak together with Helen in a social situation. The two have their arms around each other.
"[Helen] told me Ms. Rusnak was a friend of hers," wrote Lisa and David's oldest daughter in a sworn affadvit.
Rusnak is a counsellor who, according to her LinkedIn profile, specializes in child trauma. But she is not a psychologist or a social worker, as required by the courts.
'Criminals get more parenting time than me'
In the last year, two parenting assessments — a practice note 7 (PN7) and a practice note 8 (PN8) — were ordered.
David and his lawyer proposed Rusnak complete the assessments.
Lisa protested, explaining the conflict to the judge. Still, Miller allowed Rusnak to complete the assessments.
"The plaintiff's application to have Ms. Erin Rusnak dismissed from preparing the Practice Note 8 Assessment is denied," wrote Miller in a court order last November.
Rusnak released her report in January. She recommended Lisa have only four hours per month of supervised parenting time with her daughter.
"Drug addicts and criminals get more parenting time than me," said Lisa.
The former couple's oldest daughter said in her affadavit that her father directed her to change her statement to Rusnak, adding negative information about Lisa.
David and Helen reviewed that statement and made edits, she said.
CBC News did contact Rusnak for comment but did not receive a response.
David moves, doesn't tell Lisa
On July 30, 2021, Lisa brought an application before Miller in hopes the judge would force David to abide by the parenting order. At that point, it had been five months since she had seen Kit.
But Lisa says Miller refused to hear from her even though it was her application.
Instead, he addressed David, who used the time before Miller to ask for permission to travel with the children.
Miller agreed to let David take the children overseas. Lisa and David's teenage son stayed there and now lives with David's mother.
Those court wins emboldened David, says Lisa.
In September 2021, David changed Kit's school. Lisa had no idea until she received a call from her daughter's former school asking why Kit hadn't turned up to class.
In fact, David and his girlfriend had moved to a neighbouring town, Lisa later learned from friends.
By this point, it had been seven months since Lisa saw her daughter, and now, she had no idea where the girl was living.
Lisa has tried to get a different judge to take over the family court case. In late 2021, she asked the judge to recuse himself, but Miller refused.
A court order shows Miller is requiring Lisa to hire a lawyer to make the application.
Judge praises David's work in justice system
Lisa says she has no idea why Miller keeps siding with David but says the judge has on two occasions praised her ex-husband for the jobs he's had within the justice system.
"He is more trustworthy and his actions are just ignored or forgiven," said Lisa. "[The judge has] forgiven all his criminal acts and his threats and intimidation and his ignoring the court orders. I've never been asked my occupation."
CBC News is unable to verify Miller's comments praising David's work because the judge denied access to court transcripts.
A victim support worker who has been with Lisa through many of her court appearances says Miller seems to dislike her.
"In my 14 years, I've never seen anything like this before," said the woman, who is not authorized to speak on specific cases.
Support workers witness David's anger
Back in 2019 and 2020, as David made court appearances after he was charged, support workers were assigned to accompany Lisa to court.
One of those workers, whom CBC is not identifying because she fears for her safety, says she witnessed David in such a rage at the Lethbridge courthouse that sheriffs had to escort Lisa out of the building.
"He was showing aggressive language and body posturing to the point we asked the sheriffs to provide support to the victim to ensure her safety."
In a sworn affidavit, David and Lisa's oldest child said in 2019 and 2020, her father used to threaten to kill himself if the children were taken away from him.
She also said David instructed her on numerous occasions to record her mother and share the videos with him.
Lisa says at that time, she was afraid of David. But after he was charged and the family court judge began ruling in his favour, he stopped focusing on her.
"The only reason I'm still alive is because he keeps winning in court."
