DeBona v. DeBona, 2012 ABQB 720

Court of Queen ’ s Bench of Alberta Citation: DeBona v. DeBona, 2012 ABQB 720 Date: 20121121 Docket: 4806 018694 Registry: Lethbridge Between: Clint Kelly DeBona Plaintiff - and - Jody Elizabeth DeBona Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] Clint DeBona filed a Statement of Claim for Divorce and Division of Matrimonial Property in February of this year, and Jody DeBona responded with a Statement of Defence and Counterclaim in April 2012.

There are two children of the parties namely: Braden John Debona, 16 years of age, and Brooke Nicole DeBona 14 years of age. The issue of custody, access and parenting of these two teenagers seems to be the most hotly contested issue between the parties, while spousal support and division of matrimonial property remain in dispute. The issue of custody and access of children is very time sensitive, while the issues of spousal support and matrimonial property are less time sensitive.

[ 2 ] Some preliminary applications were made after the pleadings were filed and the Plaintiff Clint DeBona formally applied to have this matter subject to Case Management. Chief Justice Wittmann assigned me as Case Management Justice on May 10, 2012. Up to this point in time there appears to have been five separate applications involving numerous claims for relief. It is clear from the short history of this file that the issue of who the two teenagers should spend their time with is the primary and urgent issue. Delay and protracted interim applications can often prolong family law litigation several years.

The main issue before this Court must not be allowed to take years to resolve. [ 3 ] Parental alienation, frustration of access and parenting time can be devastating to the children at the time of a family breakup. Teens grow up extremely fast, and predictability and certainty in family law litigation is important in order to ensure the best interests of the child. [ 4 ] As Case Management Justice, I met with the parties counsel at least two times before July 25, 2012, and issued two Orders. The parties received the benefit of a very early JDR hearing scheduled for July 25, 2012.

This JDR date was readily agreed to by both parties and their counsel. Everyone was aware that I, as Case Management Justice, would conduct the JDR. [ 5 ] The JDR did not resolve the issue between the parties. Upon concluding the JDR I took the occasion to deal with August access and enforcement of that access, and

schedule the next Case Management Meeting for September 5, 2012. I also directed that the counsellor the family was seeing, continue to meet with the children and the parties and provide any recommendations. [ 6 ] Clint DeBona now asks that I recuse myself as Case Management Justice because he is of the view that I as the JDR Justice would have gained an insight into the family dispute that would somehow cause me to be biassed against him. [ 7 ] Given this background, I will review the relevant sections of the Alberta Rules of Court and then address Mr. DeBona’s complaint.

Appointment of case management judge 4.13 The Chief Justice may order that an action be subject to case management and appoint a judge as the case management judge for the action for one or more of the following reasons: (

a) to encourage the parties to participate in dispute resolution process; (

b) to promote and ensure the fair and efficient conduct and resolution of the action; (

c) to keep the parties on schedule; (

d) to facilitate preparation for trial and the scheduling of a trial date. Authority of case management judge 4.14(1) A case management judge, or if the circumstances require, any other judge, may (

a) order that steps be taken by the parties to identify, simplify or clarify the real issues in dispute, (

b) establish, substitute or amend a complex case litigation plan and order the parties to comply with it,

(

c) make an order to facilitate an application, proceeding, questioning or pre-trial proceeding, (

d) make an order to promote the fair and efficient resolution of the action by trial, (

e) facilitate efforts the parties may be willing to take towards the efficient resolution of the action or any issue in the action through negotiation or a dispute resolution process other than trial, or (

f) make any procedural order that the judge considers necessary.

(2) Unless the Chief Justice or the case management judge otherwise directs, or these rules otherwise provide, the case management judge must hear every application filed with respect to the action for which the case management judge is appointed. Case management judge presiding at

summary trial and trial 4.15 Unless every party and the judge agree, a case management judge must not hear an application for judgment by way of a

summary trial or preside at the trial of the action for which the case management judge is appointed. Purpose of judicial dispute resolution 4.17 The purpose of this Subdivision [ Judicial Dispute Resolution ] is to provide party-initiated framework for a judge to actively facilitate a process in which the parties resolve all or part of a claim by agreement. 4.18(1) An arrangement for a judicial dispute resolution process may be made only with the agreement of the participating parties and, before engaging in a judicial dispute resolution process, and subject to the directions of the presiding judge, the participating parties must agree to the extent possible on at least the following: (

a) that every party necessary to participate in the process had agreed to do so, unless there is sufficient reason not to have complete agreement; (

b) rules to be followed in the process, including rules respecting (

i) the nature of the process, (ii) the matters to be the subject of the process, (iii) the manner in which the process will be conducted, (iv) the date on which and the location and time at which the process will occur, (

v) the role of the judge and any outcome expected of that role, (vi) any practice or procedure related to the process, including exchange of materials, before, at or after the process, (vii) who will participate in the process, which must include persons who have authority to agree on a resolution of the dispute, unless

otherwise agreed, and (viii) any other matter appropriate to the process, the parties or the dispute.

(2) The parties who agree on the proposed judicial dispute resolution process are entitled to participate in the process.

(3) The parties to a proposed judicial dispute resolution process may request that a judge named by the parties participate in the process. Documents resulting from judicial dispute resolution 4.19 The only documents, if any, that may result from a judicial dispute resolution process are (

a) an agreement prepared by the parties, and any other document necessary to implement the agreement, and (

b) a consent order or consent judgment resulting from the process. Confidential and use of information 4.20(1) A judicial dispute resolution process is a confidential process intended to facilitate the resolution of a dispute.

(2) Unless the parties otherwise agree in writing, statements made or documents generated for or in the judicial dispute resolution process with a view to resolving the dispute (

a) are privileged and are made or generated without prejudice, (

b) must be treated by the parties and participants in the process as confidential and may only be used for the purpose of that dispute resolution process, and (

c) may not be referred to, presented as evidence or relied on, and are not admissible in a subsequent application or proceeding in the same action or in any other action, or in proceedings of a judicial or quasi-judicial nature.

(3) Subrule (2) does not apply to the documents referred to in rule 4.19 [ Documents resulting from judicial dispute resolution ]. Involvement of judge after process concludes 4.21(1) The judge facilitating a judicial dispute resolution process in an action must not hear or decide any subsequent application, proceeding or trial in the action without the written agreement of every party and the agreement of the judge.

(2) The judge facilitating a judicial dispute resolution process must treat the judicial dispute resolution process as confidential, and all the records relating to the process in the possession of the judge or in the possession of the court clerk must be returned to the parties or destroyed except (

a) the agreement of the parties and any document necessary to implement the agreement, and

(

b) a consent order or consent judgment resulting from the process.

(3) The judge facilitating a judicial dispute resolution process is not competent to give evidence nor compellable to give evidence in any application or proceeding relating to the process in the same action, in any other action, or in any proceeding of a judicial or quasi- judicial nature. [ 8 ] The

interpretation of the Alberta Rules of Court must be interpreted in light of

Part 1 Foundational Rules, specifically the purpose and intention of these Rules in Division 1, Rule 1.2. 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it.

[ 9 ] In light of the purpose and intention of the Rules overall the exact complaint of Clint DeBona must be examined. First, I note that there is no official Application supported by sworn evidence backing up his complaint.

This speaks to the informality of the case management process but nevertheless does leave the Court to make a decision based only on bold assertions in counsel’s Brief. [ 10 ] Because of this application counsel for the Defendant, who needed timely relief for access to the children over the school year was forced to bring an application in Chambers for continued access, notwithstanding Rule 4.14(2).

It is of note that the Order for access of September 11, 2012, is much broader in scope than what I ordered in July, and the Chambers Judge ordered an expedited trial date and Special Chambers hearing. [ 11 ] The complaint of the Plaintiff appears to be that my Order of July 25, 2012, resulted more from information obtained in the JDR than from information that I would hear as Case Management Justice. My Order of July 25, 2012, gave very specific dates and times for access, and police enforcement for the month of August and a new Case Management Meeting on September 5, 2012.

Both requests were before me in previous Case Management meetings. It is in the best interests of the children that they have as much contact with each parent, as is mandated by Subsections 16(8) and (10) of the Divorce Act . This principle along with the interpretive lense through which we must view all the Rules of Court force me to conclude that in the area of Case Management, courts should not easily and quickly accede to requests for recusal. [ 12 ] Delay in litigation is inevitable in many cases. However, delay in family law cases involving children is to be avoided if at all possible.

While it cannot be said that either party in this case is intentionally attempting to alienate the children, it is certainly a concern of the Court. It is clear that a custodial parent does have a positive obligation to encourage access. I am not convinced that Clint DeBona is fully aware of his duty in this respect. It is clear from the Report of the counsellor in late August that the forced, specified access with the back up of a police enforcement clause is helping.

It has assisted the children in giving the opportunity to rebuild their relationship with their mother. [ 13 ] I have said that the parties to this litigation are most fortunate in that they have moved into Case Management at a very early stage. They have an Order for Trial in early 2013 again an aspect of this file for which the parties can be most grateful.

To allow one party to derail the Case Management process and drag out litigation which can easily turn young teenagers into unwilling pawns in a family law battle would be unfair to the other party and not in the best interests of the children. [ 14 ] The Plaintiff willingly asked for Case Management. The Plaintiff willingly went into the JDR process knowing who the Justice was. To now allow him to derail the process and embark upon a lengthy family law battle using the teenage children against their mother because of a Case Management Order he does not like, would not be fair or just to all concerned.

I will only recuse myself if the request comes jointly from both parties. [ 15 ] Accordingly, I deny the Plaintiff’s request that I recuse myself as Case Management Justice. I will remain as Case Management Justice to promote and ensure the fair and efficient conduct and resolution of the action and to keep the parties on

schedule for a trial date in early 2013. Heard on the 05 th day of September, 2012. Dated at Lethbridge, Alberta this 21 st day of November, 2012

D.K. Miller J.C.Q.B.A. Appearances: Lori G. Andreachuk, Q.C. Andreachuk Law for the Plaintiff Patricia A. McMillan Peterson & Purvis for the Defendant