Boyda v Shaw, 2015 ABQB 780

Court of Queen ’ s Bench of Alberta Citation: Boyda v Shaw, 2015 ABQB 780 Date: 20151208 Docket: 4801 140698 Registry: Calgary Between: Howie Preston Boyda Plaintiff - and - Marilyn Juel Shaw Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ [ 1 ] This matter was heard by me on 30 October, 2015. I had directed that Ms. Shaw appear in order to address the outstanding application. Mr. Boyda was given notice of the hearing but I did not require that he attend. He did not attend.

This Court made rulings at that hearing. It now supplements that ruling with the terms of an order that is set out at the end of these reasons. Background

[ 2 ] There were two matters that I was required to address. The first was on application by Ms. Shaw filed on 21 August, 2015 where she asked me to recuse myself and cease making any decision regarding her matters before the Court. [ 3 ] The second matter I had to deal with was Ms. Shaw’s ability to commence proceedings in this Court including how and when she could enter the Calgary Courts Centre. Due to serious concerns Court Security had because of Ms.

Shaw’s unlawful conduct while in the building, which led to criminal convictions, she was placed under a written securities protocol (the “Security Protocols”) by the Correspondence Unit of Court Services, a department of Alberta Justice and Solicitor General. [ 4 ] As for the history of the divorce proceedings between Ms. Shaw and Mr. Boyda, the parties began living together in September 1991. They were married in November 1996. They separated on September 14, 2008.

They had one child who is now an adult. [ 5 ] After several contested interim applications, the Chief Justice appointed a case management judge on 20 July, 2009, to assist the parties in getting this high conflict case to trial. The Court records show a multitude of case management hearings spread over two years before two successive case management judges; Bensler J. and Brooker J. Eventually, Hawco J. heard a six day divorce and matrimonial property trial in June, 2011. He rendered his written decision on 22 September, 2011, found at 2011 ABQB 572 . Ms.

Shaw appealed that judgment. [ 6 ] The Court of Appeal on 3 January, 2014 dismissed the appeal and upheld the requirement in the Hawco J. judgment that Ms. Shaw must seek leave to file further Court proceedings in the Court of Queen’s Bench in that action. (see Boyda v Shaw , 2014 ABCA 1 ). The Court of Appeal also stated that Ms. Shaw should have some mechanism to enforce any yet unfulfilled provisions of the Hawco J. divorce judgment. Ms.

Shaw sought leave to appeal the decision of the Court of Appeal to the Supreme Court of Canada, which leave application was dismissed without reasons: 35751 (May 15, 2014), [2014] SCCA No 91. [ 7 ] Ms. Shaw brought the matter back before the Alberta Court of Appeal on 2 April, 2015. She complained to Martin J.A. that she was in dire financial trouble and wanted to bring an application to vary the child and spousal financial support provisions in the Hawco J. judgment.

She complained to Martin J.A. that she was prevented from doing this because she was prohibited from entering the Calgary Courts Centre due to the Security Protocols. [ 8 ] In an effort to assist Ms. Shaw to obtain a mechanism to have her financial support variation application heard, on 2 April, 2015, Martin J.A. wrote a letter to Wittmann C.J. asking that the Court of Queen’s Bench do what it could to arrange a hearing to allow it to re-visit the spousal and child support terms of the Hawco J. judgment. As mentioned, the Hawco J. judgment had a provision prohibiting Ms.

Shaw from further court applications, in that action, without leave of the Court. [ 9 ] On 7 April, 2015 Wittmann C.J. sent a memo to me asking that I personally handle Ms. Shaw’s request and hear Ms. Shaw to determine if she should have leave to bring her variation application. I set up a court case conference with both parties present to be heard by me in open court on 12 June, 2015. [ 10 ] At the case conference I provided the parties with a brief background as to how the matter got before me.

I pointed out that this hearing was set up at the request of the Chief Justice in response to the letter from Martin J.A. [ 11 ] I reminded the parties that Ms. Shaw had in 2010 reported me, Wittmann C.J., Bensler J. and Brooker J. to the Canadian Judicial Council. Except for the Chief Justice, all judges had heard court applications in Ms. Shaw’s divorce action. The complaint against all four judges was summarily dismissed by letter to Ms. Shaw from the Executive Director and Senior General Counsel, Norman Sabourin, dated 16 November, 2010. [ 12 ] I advised Mr. Boyda and Ms.

Shaw that I would not hear the substantive application and cross-application but would case manage the process to facilitate the presentation of the application and set a date for a hearing before another judge. I advised the parties to let me know if either of them did not want me to proceed any further. Neither party asked that I not continue. [ 13 ] With both parties prepared to have me continue, I proceeded with the case conference. Both parties made submissions on what issues each of them wanted the Court to decide. Besides a request for a half day special, Ms.

Shaw sought a date for an urgent interim financial support application. After hearing them both, I made a procedure order that; (

a) set the date of 23 June, 2015, for an interim hearing to deal with Ms. Shaw’s interim claim; (

b) set out the issues for the family law half day special, to be held on 27 August, 2015 and; (

c) allowed a pre-arranged time for Ms. Shaw to access the courthouse to file her documents (the “June 12, 2015 Order”). [ 14 ] On 23 June, 2015, the interim financial support application came before Jones J. in self-represented morning chambers. The record indicates that he explained to the parties that efforts to collect on a current support order should be referred to Maintenance Enforcement.

He directed that all other matters were to be dealt with at the half-day special application already set for 27 August, 2015. [ 15 ] On 22 July, 2015 I received verbal and written complaints from the court staff at the chambers filing counter and the Sheriffs’ office that Ms. Shaw was abusing the conditions in the Security Protocol. The Chambers counter senior manager drew my attention to the fact that Ms. Shaw was using the action number for the special set for 27 August, to add parties like the Minister of Justice for Alberta, and to add a number of new claims.

To address these complaints I directed the parties to attend a further case conference to be held on 24 July, 2015. [ 16 ] At the case conference on 24 July, 2015, after hearing from Ms. Shaw and Mr. Boyda and from the representatives from court security staff I directed changes to the 12 June, 2015 Order as follows:

a) The Special application set for 27 August to proceed and 12 June, 2015 Order filing deadlines remain in place;

b) Ms. Shaw was permitted to come to the courthouse to file documents at 9 a.m. on Fridays before the 27 August, 2015 hearing;

c) If Ms. Shaw cannot file on her Friday filing day, she is to make a written request for an appointment to court security according to the communication protocol to arrange a time to enter the Calgary Court Centre to file documents; and

d) All document material Ms. Shaw wants to file will be reviewed first by myself to determine that it is in relation to the issues set out in the 12 June, 2015 Order. [ 17 ] On 31 July, 2015 Ms. Shaw sent to me an unfiled application to adjourn the 27 August, 2015 special application. I reviewed the application and permitted it to be filed and served on Mr. Boyda who opposed the adjournment. The adjournment application was set to be heard by me on 13 August, 2015. [ 18 ] On 7 August, 2015 I received an “incident report” filed by court security. It stated that Ms. Shaw wanted to speak with my judicial assistant.

Ms. Shaw was told by court security that she could not speak with my judicial assistant and that she would have to leave the building. When Ms. Shaw refused to leave the building a second Sheriff was called and Ms. Shaw was escorted out of the building. [ 19 ] On 13 August, 2015, after hearing Ms. Shaw and Mr. Boyda, I denied Ms. Shaw’s application to adjourn the 27 August, 2015 special hearing. Both parties had indicated on several occasions that they are both under severe financial pressure and wanted an early date. Court time has been specifically set aside for them and new dates would be months away.

As for Ms. Shaw’s complaint that she could not have her documents ready for the special hearing, according to the Court set deadlines which had passed, Mr. Boyda said he would not be prejudiced by receiving documents outside the set deadlines. I advised Ms. Shaw that she should get her documents filed and served forthwith, so the judge can read them before the hearing, but regardless, the special hearing would proceed on 27 August, 2015 before the presiding judge, who would not be me. [ 20 ] Due to the vast amount of correspondence to the Court from Ms.

Shaw on 19 August, 2015, I directed that a letter be addressed to Ms. Shaw, reminding her not to communicate directly with a judge except by court application and to have her documents filed as soon as possible. [ 21 ] On 21 August, 2015, Ms. Shaw dropped off documents to the court to be filed as permitted by the 12 June, 2015 Order. These documents were relevant enough to the scheduled 27 August, 2015, special application so I approved them to be filed. When attempting to notify Ms. Shaw by email (the court ordered method of communication) that the documents were approved for filing, the email was bounced back.

I directed that the court staff file the documents, and send filed copies to Mr. Boyda and to Ms. Shaw by regular mail. [ 22 ] The special application was heard by Justice Nation on 27 August, 2015, and all issues in the 12 June, 2015 Order were addressed. Justice Nation did not deal with Ms. Shaw’s new application filed on 21 August, 2015, because it was not part of the list of issues contained in the 12 June, 2015 Order. [ 23 ] After the Nation J. order of 27 August, 2015, Ms. Shaw asked the Court to have the 21 August, 2015 application dealt with.

I therefore directed that she appear before me on 30 October, 2015, to speak to that application. This appearance was appropriate because the matter had not been addressed by Nation J. at the domestic special on 27 August, 2015 and further, Ms. Shaw was seeking in her application, for me to recuse myself and have another judge deal with her court matters. [ 24 ] I denied her application to recuse myself because there was no reason for me to do so. In making that decision I took into consideration the surrounding facts and circumstances of Ms.

Shaw’s history with this Court. [ 25 ] For example, in largely dismissing Ms. Shaw’s appeal of Hawco J.’s divorce and property judgment the Court of Appeal in its January 3, 2014 decision, wrote the following excerpts: [18] The Appellant states that she is mentally and physically ill and was unable to properly prepare for the divorce trial. She argues that because she was self-represented and very ill, she was prejudiced throughout the trial and was unable to properly express her position.

She submits that the trial judge did nothing to assist her, was biased towards the Respondent because he had counsel, and should have adjourned the matter. The Appellant attempted to commit suicide during the trial with a razor blade she had smuggled into the Calgary Courts Centre a few months before.

She was subsequently incarcerated in relation to that incident. [21] In her oral submissions to this Court, the Appellant maintains that she has been frustrated in her ability to enforce portions of the judgment pronounced in the Court below because the Court of Queen’s Bench has declined to give her leave to pursue such matters. (Ms. Shaw was prohibited from commencing any action against Mr.

Boyda or his lawyer, and from initiating any application in this action (except for an appeal), without leave of the Court, on notice. (ARD F31 at para. 20) She also asserts that the previous no contact order which was issued in 2009, does not have an end date and is in any event an impediment to the exchange of up-to-date tax information. She asks, accordingly, for a “new no contact order” which reflects current circumstances. [22] We direct that the extant no contact order shall remain in full force and effect.

Its terms do not impede the exchange of the information between the parties which, of course, can be effected by email. [23] We are of the view that the Appellant should have some mechanism to enforce any yet unfulfilled provisions of the divorce judgment. We agree that in all of the circumstances, it was appropriate to require that Ms. Shaw seek leave to do so. We vary that direction only to the extent that any such application may be brought before any judge of the Court of Queen’s Bench. [24] The appeal is otherwise dismissed. [ 26 ] As previously mentioned, Ms.

Shaw appealed this Appeal court ruling to the Supreme Court of Canada, which was dismissed

without reasons. [ 27 ] In the criminal appeal of her convictions for offences arising out of her divorce proceedings, the Court of Appeal ( 2015 ABCA 25 ) wrote the following at paragraph 2: The appellant was charged with numerous offences arising out of divorce proceedings in the Court of Queen’s Bench. On April 16, 2012, the appellant, represented by counsel, pleaded guilty to six offences: carrying a concealed weapon; disobeying a lawful court order; obstructing justice by falsifying a court order; criminal harassment; uttering a forged document; and fraud.

The appellant signed an Agreed Statement of Facts which supported the pleas. The particulars were read into the record by the Crown. Those facts stated that the appellant had brought razor blades into the Calgary Court Centre and had hidden them throughout the building. On one occasion in a courtroom she took out a razor blade and seriously harmed herself. The appellant contacted her former husband on several occasions, in breach of a restraining order. A Queen’s Bench judge had ordered that the proceeds of the sale of the matrimonial home be placed in trust. The appellant forged an order of that same judge.

The order directed the release of the bulk of the funds to the appellant. [ 28 ] At paragraph 13 the Court of Appeal wrote: Even assuming that this court could vacate the pleas and direct the matter to trial, the appellant’s own admissions establish the elements of the two most serious offences. She swore an affidavit acknowledging that she hid razor blades in the court house. In another affidavit, she attached, as an exhibit, a letter authored by her in which she acknowledged that she forged a court order. [ 29 ] Ms.

Shaw appealed that ruling to the Supreme Court of Canada and on 28 May, 2015 that Court denied her leave to appeal without reasons: 36349 (May 28, 2015), [2015] SCCA No 108. [ 30 ] The Queen’s Bench court record computer print-out for Ms. Shaw is 35 pages long involving 10 different court actions. There have been 54 court applications and 45 court orders from 20 different judges going back as far as 2002. [ 31 ] In 2002 the Southern Alberta Institute of Technology commenced an action and obtained a restraining order against Ms.

Shaw prohibiting her from attending at the S.A.I.T. campus or contacting members of the Board of Governors, instructors or administration. [ 32 ] In 2009 her husband Howie Boyda obtained a restraining order forbidding Ms. Shaw from contacting him. [ 33 ] In 2014 Ms. Shaw commenced an action against 37 defendants, all of whom were employed in the justice system and which included the Minister of Justice for Alberta and senior officials on his staff, several senior court security personnel, and several junior and senior officials in Court Services.

This action was ordered struck by a Master in June 2014. [ 34 ] In 2015 the Elizabeth Fry Society obtained a restraining order against Ms. Shaw prohibiting her from attending near their business premises or contacting employees of the Society. [ 35 ] As mentioned, in 2010 Ms. Shaw reported Chief Justice Wittmann, case management Justices Bensler and Brooker and myself to the Canadian Judicial Council. The complaint was summarily dismissed in a letter to Ms. Shaw in 2010. [ 36 ] Being of the view that I had acted and can continue to act impartially in dealing with bona fide court access by Ms.

Shaw, I decided the responsible course of action was for me to deal with her 21 August, 2015 application that I heard on 30 October, 2015. I knew that any decision I made had to reflect not only the need that proceedings be impartial, but also the need to prevent a litigious party like Ms. Shaw from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to her liking. The court record indicates that Ms.

Shaw practices judge shopping by filing several actions that assert the same claim hoping to find a favourable judge. [ 37 ] I decided to put in place an order that would allow Ms. Shaw access to the courts and the courthouse, but under reasonable limitations given her history. I also took into consideration the heavy toll Ms. Shaw’s past extensive, disturbing conduct has taken on court resources and staff. Due to genuine security concerns, whenever Ms. Shaw enters the Calgary Courts Centre court security and the Sheriffs’ office must be notified to make special security arrangements.

A Sheriff officer, often two, are taken from their court security duties to accompany Ms. Shaw at all times while she is in the building. Judicial assistants, counter clerks, court supervisors, and schedulers have been persistently harassed with telephone calls, emails, letters and improper proceedings that are distressing and take them away from their other regular duties. [ 38 ] Therefore, I make the following order:

a) The litigation prohibition found at paragraph 19 of the Judgment Roll of Justice Hawco, dated 22 September, 2011, is extended so that Marilyn Juel Shaw is prohibited from commencing, or attempting to commence, or continuing any action, proceeding, motion or application in the Court of Queen's Bench of Alberta, on her own behalf or on behalf of any other person, entity or estate without first obtaining leave of Justice B.E. Mahoney, seized, or if he cannot act, another judge of this court as designated by the Chief Justice or the Associate Chief Justice.

b) With respect to any action now pending in the Court of Queen's Bench, no further action, proceeding, motion or application maybe commenced or continued by the Applicant unless she has leave to do so from Justice B.E. Mahoney, seized, or if he cannot act, another judge of this Court as designated by the Chief Justice or the Associate Chief Justice.

c) Any application in this court by the Applicant for leave to initiate or continue any action, must be made in writing to:

Clerk of the Court of Queen's Bench Correspondence Unit Resolution and Court Administration Services 9th Floor, John E. Brownlee Building 10365-97th Street Edmonton, AB T5J 3W7 or by emailing: correspondence.courtservices@gov.ab.ca

d) Any application in this court by the Applicant for leave to initiate or continue any action, must be made in writing to the address in paragraph “c” above and accompanied by an affidavit: i. attaching a copy of this order; ii. attaching a copy of the originating document, pleading, motion, application or process the Applicant proposes to issue or file; iii. deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not designed to harass or cause delay or otherwise abuse the process of this Court, and that there are reasonable grounds for the claim or proceeding; iv. indicating whether the Applicant has ever sued some or all of the defendants or respondents previously in any jurisdiction or court and, if so, providing full particulars; v. undertaking that, if leave is granted, the authorized pleading, motion, application or process, the order granting leave to proceed, and the affidavit in support of the order will promptly be served on the defendants or respondents, and vi. undertaking to diligently prosecute the proceeding.

e) The judge reviewing the application may at any time direct that notice of the application to commence or continue an action, application or proceeding be given to any other person.

f) In any application to commence or continue proceedings, the Applicant must describe herself in the application and any pleadings by her full name, and not by using initials or a pseudonym.

g) The court's decision whether to grant leave to commence or continue proceedings will be given in open court with the Applicant given notice of the time and date of the ruling to which she can attend. Leave may be granted with conditions, such as the posting of security for costs. An application that is dismissed may not be made again before another judge of this Court unless the Applicant discloses in writing to the presiding judge that the application has previously been dismissed.

h) An application for leave to vary or set aside this order must be made on notice to any person as directed by the Court.

i) The Applicant can attend at the Calgary Courts ("CCC") Centre for all scheduled court appearances or for a purpose other than a scheduled court appearance by first obtaining permission from the Correspondence Unit by writing to the address in paragraph “c” above setting out the purpose of the attendance, the estimated length of time needed, and the proposed time and date requested. The Correspondence Unit, if permission is granted to attend at CCC, will notify the Applicant by regular mail or courier with the time and date and the length of the attendance. The Applicant will provide the Correspondence Unit with any change in mailing address.

j) Except as varied by this Order the terms of the Revised Communication Protocol with Justice and Solicitor General dated July 7, 2015 shall remain in force until varied by the Correspondence Unit or this Court in writing.

k) Any clarification or dispute with the application or enforcement of this order shall be referred to Justice B.E. Mahoney, seized, or if he cannot act, another judge of this Court as designated by the Chief Justice or the Associate Chief Justice. Heard on the 30 th day of October, 2015. Dated at the City of Calgary, Alberta this 8 th day of December, 2015. Bryan E. Mahoney J.C.Q.B.A. Appearances: Marilyn Juel Shaw not represented by counsel