HH v DB, 2016 ABQB 164

Court of Queen ’ s Bench of Alberta Citation: HH v DB, 2016 ABQB 164 Date: 20160505 Docket: FL03 48069 Registry: Edmonton Between: HMH “Ms. H” Plaintiff/Appellant - and - DEB “Mr. B” Defendant/Respondent Corrected judgment: A corrigendum was issued on May 5, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.S.

Little _______________________________________________________ Note: Names of the parties and their child have been replaced with initials throughout, including references to names in the excerpts from the trial transcript. I. Background [ 1 ] Ms. H appeals a Parenting Order made in Provincial Court. [ 2 ] The parties married in 2011 and separated in 2014. On October 23, 2014, they obtained an Interim Consent Parenting Order granting day to day care of their three-year-old daughter, A, to Ms. H, with parenting to Mr. B on alternate weekends.

On December 9, 2014, they obtained a further Interim Consent Parenting Order granting shared parenting. On June 29, 2015, that Order was varied, again

by consent, to change the pickup and drop off location from a police station to the home of the maternal grandparents. [ 3 ] On September 18, 2015, the matter proceeded to trial. Ms. H was represented by counsel, and Mr. B was self-represented. As a result of the trial, the learned provincial court judge granted a Parenting Order providing for day to day care of A to Mr. B. This is an appeal of that order. [ 4 ] Mr. B filed no materials in the appeal. He represented himself, but acknowledged during submissions that in the course of the appeal process, he was encouraged to retain counsel.

I am satisfied that having counsel at this stage would not affect the outcome. II. Grounds of Appeal [ 5 ] The Appellant Ms. H lists a number of grounds of appeal: 1. The learned trial judge allowed and relied upon inadmissible evidence; 2. The learned trial judge failed to consider and apply the rule in Browne v Dunn ; 3. The learned trial judge misapprehended key evidence; 4. The trial proceedings give rise to a reasonable apprehension of bias concerning fairness to the Appellant. [ 6 ] The first and second grounds deal with technical evidentiary issues, and the third deals with the

interpretation of evidence. [ 7 ] In this trial, the father was self-represented. That does not entitle a trial judge to disregard the rules of evidence, nor does it mean for appellate review purposes that he is held to a lower standard. Realistically, it is more difficult with one or more self-represented parties to adhere strictly to rules of evidence. But for the reasons that follow, I need not deal with the, arguably, more difficult issues respecting admission of and

interpretation of evidence and will deal with only with the fourth ground above. III. Standard of Review [ 8 ] Trial fairness is a question of law reviewable on a correctness standard ( R v Addulle , 2016 ABCA 5 ). IV.

Reasonable Apprehension of Bias and Procedural Fairness [ 9 ] Recognizing that [i]ssues of procedural fairness and real apprehension of bias sometimes overlap ( Todd v Perlau , 2008 ABCA 17 at para. 9 ), the appeal is allowed based on applying the test for reasonable apprehension of bias enunciated by the Supreme Court of Canada in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) , 2015 SCC 25 : “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly” (at para 20). [ 10 ] Running a trial with a self-represented individual can put a trial judge in a very difficult position: “When one party is self- represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging”: Martin v Martin , 2015 ONCA 596 at para 108 . [ 11 ] The learned trial judge’s legitimate concern with trial efficiency is illustrated in his discussion with Ms. H’s counsel and Mr.

B at the start of the trial about the ability of the parties to complete the trial in the two and a half hours allocated. The trial judge’s concern does not cause me difficulty, because determining the best interests of a child in a contentious parenting dispute, in that short time frame, is challenging. However, the trial judge’s concern for trial efficiency went beyond the court’s role.

Interruption of the mother’s testimony, shortly after she is sworn as the first and only witness for herself, suggests that her counsel may not have had an opportunity to fully present her case (transcript page 6, lines 28-38): A Yeah, it was typical relationship. After we got married things started to decline with Mr. B’s just lack of enjoyment for life, lack of motivation to do anything including work, helping with [my other daughter], the only child at the time. Just things like that. Once I got pregnant with A and went on maternity leave Mr.

B became increasingly controlling to the point where I wasn’t even able to go grocery shopping say alone or anything. You know, he never said you can’t do this or you can’t do that but that was the situation, that it would cause such great problems that it wasn’t even worth it to go anywhere. That’s kind of what led up to – THE COURT: Ms.

Chadi, you are going to have to limit the questioning and answering because you are not going to finish in half-an- hour. [ 12 ] Even assuming that that exchange legitimately falls within a trial judge’s right and obligation to use trial time efficiently, I note that 9 pages (4-13) of the transcript deal with the mother’s direct examination and that 23 pages (13-36) deal with the Court’s examination of the father.

After admonishing counsel to keep her case short, and assuming that the number of pages is somewhat representative of time spent, the father was allowed over twice the amount of time as the mother, and in the father’s case the Court conducted his direct examination.

[ 13 ] What gives rise to greater concern respecting the appearance of trial fairness are the learned trial judge’s interactions with the self-represented father, particularly in conducting the direct examination of the father, and the interruptions of the mother’s counsel when she is cross-examining the father: “[w]hile a trial judge has a certain amount of discretion with respect to how much assistance a self-represented litigant needs, there are clear limits on the type of assistance that can be provided.

Intervention by a trial judge in the questioning of a witness to the extent that the judge appears to be taking on the role of counsel will result a finding of apprehension of bias ( Vasdev v Décor Home Enterprises Ltd. , 2012 BCSC 420 at para 59 citing James v Canada (Minister of National Revenue)

(2000) CanLITT 16700 (FCA)). [ 14 ] The trial transcript contains numerous instances of the learned trial judge interrupting counsel in her direct examination, unnecessarily entering the forum by interrupting cross-examination, and leading the husband in his direct examination. [ 15 ] Some of the more obvious examples follow: 1. After the Appellant Ms. H is sworn in, her counsel asks her about her age and education (transcript page 4, lines 20-40): Q What is your highest level of education? A Well, I’m currently registered in the CA program. Q And are you currently employed? A Yes.

THE COURT: Sorry, I do not know what level that would be. MS. CHADI: Okay. So what is the highest degree or highest accreditation – A So I currently have a diploma and I’m in the degree program – THE COURT: Sorry, have a what? A I currently have an accounting diploma and I’m enrolled in the degree program. THE COURT: An accounting diploma with who? A NAIT, and I’m enrolled in the degree program with – THE COURT: And how long is that accounting diploma? 2. In Mr. B’s cross-examination of Ms.

H, the real issue is whether the mother communicates with the father respecting the child’s doctors’ appointments, but it devolved into a debate about what kind of communication was permitted under previous orders, and the learned trial judge repeats the mother’s testimony that she did not actually specify dates and times. This questioning was not merely clarification but rather cross examination of the witness, which is not appropriate (transcript page 14, lines 19-41, page 15, lines 1-13): Q So you just lied on the stand stating you told me. A I informed you of a doctor’s appointment.

There was no date and time set.

THE COURT: Sorry, how would that have been? A I had said I’m taking – THE COURT: I thought the order said that your communication was limited to emails so how other – A Prior to -- prior to that order, Your Honour. THE COURT: Well, he is asking all the way through. How did you inform of recent since the order came into effect -- since the restraining order or the mutual – A So everything since then has happened through email. THE COURT: All right. So have you advised him of all medical appointments by email?

A Probably not all but I’ve said I’m taking A to the doctor’s today, can you please give me the information that you have regarding her skin so I can take her to the doctor so I’m able to provide all the information so that they can make their assessment accordingly. THE COURT: So you have not advised him of the specific dates and times – A No, I have not. THE COURT: -- of the appointments? A No, I have not. THE COURT: Thank you. 3. The learned trial judge entered as an exhibit, over the objections of counsel, the Clerk’s notes as back up for a mutual restraining order with an assumption as to why Mr.

B wanted to rely upon those notes. If the relevance of the father’s claim was that the mother was in breach of an order, what relevance is it that a radius restriction in the Clerk’s notes did not make it into the Order? In any event, the Court appears determined to assist the father (transcript page 16, beginning at line 8): Q Were you in breach of the court order that day by coming within 20 feet of me to do the exchange for the child? A I did not do the exchange of the child that day. Q So you and your boyfriend, M, did not come within 20 feet of me that day? A No, we did not.

MS. CHADI: Your Honour, there is no court order that governs how far these parties are supposed to – THE COURT: He is just asking the question. MR. B: Your Honour, I have a bit of discrepancy with that issue because Ms. Chadi for that court order did not put the distance in there. And I do have a copy of the printout from the courts that day stating that she was supposed to put that in there. MS. CHADI: The mutual restraining order was granted by Justice Ackerl. He signed the order. THE COURT: Can I see the notes? MR. B: Yes, you may. THE COURT: Show them first to Ms. Chadi. MR.

B: Is this not the order I showed you? MS. CHADI: Well, this isn’t an order. It’s notes. MR. B: Well, this is exactly what I showed you that day. THE COURT: He is asking if those are the clerk’s notes, Ms. Chadi. THE COURT: All right, I will see them. So what are you suggesting is in here that was not included in the order? MR. B: It was supposed to be -- I was told by the court clerk that there was a distance that was supposed to be put in the court order. THE COURT: Two-hundred metre restraint – MR. B: Yes, and that was not put in the actual order. THE COURT: -- of home or work.

A This pick-up did not – THE COURT: I see it, thank you.

A It didn’t happen at home or – THE COURT: This will be an exhibit. A -- at work. THE COURT: Madam clerk. Any objection, Ms. Chadi? MS. CHADI: Well, I do object to that exhibit because there’s a mutual – THE COURT: They are clerk’s notes. What is your objection? MS. CHADI: The objection is that there is an order in place already. THE COURT: I know. Those are clerk’s notes. MS. CHADI: Okay. No objection. THE COURT: Which have not been – who prepared the order? MS. CHADI: I believe our office prepared the office order. THE COURT: All right. The clerk took the notes. MS. CHADI: That’s fine.

THE COURT: The suggestion is -- that the father is making is that you did not translate the order -- your office did not translate the order properly according to the clerk’s notes. MS. CHADI: That is the suggestion. THE COURT: That is the suggestion. MS. CHADI: Yeah. THE COURT: Thank you. MS. CHADI: So I’m fine with that.

[ 16 ] It can be argued that this was an academic debate as to whether one can breach a court order which does not contain, but might have been intended to contain, a certain prohibition. The learned trial judge, however, refers in his reasons to the father’s evidence that the mother “breached the court orders on various occasions”. 4. In examining Mr. B, the learned trial judge leads him to an answer (transcript page 25, lines 19-36): Q But what was in the actions to be feared on that day? What was the mother doing? A Just flaring – Q What was she saying? A -- flaring (INDISCERNIBLE).

I don’t remember the exact conversation as to what took place. Q So describe her demeanour? Describe what was causing someone to think that security should be called? A She was very angry towards the incident. I don’t know – Q So you are saying she was exhibiting anger? A Like, the fact that I wouldn’t -- sorry? Q You are saying she was exhibiting anger? A Oh, for sure. Yes. And the Judge knew I was afraid. Like I sat there and would not leave until she left the room and then that’s when the Judge offered me a security escort of the building. Like, she knew that I was worried. And it was – 5(

a) During Ms. Chadi’s cross-examination of Mr. B, the learned trial judge frequently interrupted the flow of her questions (transcript page 38, beginning at line 29): Q If you had a customer or client who needed a security system during the time that you have A would you – A I would -- I’d put it off until I do not have her. Q Okay. You mentioned an incident – THE COURT: So which begs the question what happens if you have her full-time as you propose? A Then I can book it during the daytime hours.

THE COURT: Pardon me? A I can book it during the daytime hours, or I do have a best friend that I’ve been friends with for 31 years, she lives minutes away, that she would watch her. THE COURT: And how often would that happen? A It wouldn’t happen often. THE COURT: What is not often? A Maybe twice a month. My time with A is valuable. Like, I do not -- I’d spend it with her. THE COURT: Well, I mean, here you are proposing to the Court to do day-to-day care – A Yes. THE COURT: -- of A. A Yes.

THE COURT: And here you are telling the Court also that on week on/week off you slow down when you have your week with A and then you speed up and do evenings and weekends when you do not have A. A When I don’t have her because I’m single and that’s -- if I have her I don’t need to put in those extra hours. THE COURT: So if you had day-to-day parenting what would happen with this – A Then I work my 9 to 5. THE COURT: You would not do the evenings and weekends? A No, I would not do them. THE COURT: All right. 5(

b) While counsel was cross-examining the father on an allegation that the mother had hit her other daughter, the Court interjected (transcript page 40, beginning at line 36):

Q Okay. With her – A Hand. Q Okay. THE COURT: Open hand? A Yes. MS.CHADI: And what was the reason for that, do you know? A I do not remember the reasoning behind it. THE COURT: Once, twice? A That was one incident. THE COURT: Injury? 6(

a) When counsel was cross-examining the father on his use of anti-depressants, the learned trial judge volunteered the answer that the father had never wanted to be on them and was only prescribed them because the mother insisted. That was the hearsay evidence the father gave earlier, but it was reinforced by the learned trial judge. This delved into advocacy on behalf of Mr. B during counsel’s cross examination, which was inappropriate (transcript page 42, lines 1-13): Q The physician told you to stop taking them?

A The physician stated I did not need to be on them in the beginning so I went back – THE COURT: From the start he disagreed with him being on them. MS. CHADI: But a doctor still prescribed you antidepressants? A Yes. THE COURT: Despite disagreeing with him being on them. It was because of what Ms. H said apparently. 6(

b) Similarly, when asked by Ms. Chadi the name of a previous judge who offered the father a police escort, the learned trial judge answered for him. Even if Mr. B had retained counsel, his counsel would be unable to answer questions for him under cross examination. It is therefore inappropriate for a neutral party, deciding the case, to do the same (transcript page 50, lines 22-26): Okay. You mentioned that the judge offered you a police escort, which judge offered you a police escort?

A The day -- sorry. THE COURT: He said Judge Filice. V. Conclusion [ 17 ] The conclusion to be drawn from these and other parts of the transcript is not, of course, that there was any actual bias. The Appellant is not arguing that. Nor might any of the examples given above in and of themselves rise to the level of interference or perceived bias required to label the trial unfair.

On a cumulative basis, however, I am satisfied that a well- informed person viewing the trial would conclude that consciously or unconsciously, the trial judge did not decide fairly. [ 18 ] For that reason, I allow the appeal and set aside the September 18, 2015 Order. The proper course in a case involving custody is that the matter be sent back to Provincial Court for a rehearing, and I so direct. Heard on the 11 th day of March, 2016. Dated at the City of Edmonton, Alberta this 18 th day of March, 2016. J.S. Little J.C.Q.B.A. Appearances: Marino Eliopoulos Tarrabain Law for the Plaintiff Mr.

B Self-Represented _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice J.S. Little

_______________________________________________________ The name of plaintiff counsel was changed to read Marino Eliopoulos.