KE v CSM, 2016 ABQB 342

Court of Queen ’ s Bench of Alberta Citation: KE v CSM, 2016 ABQB 342 Date: 20160621 Docket: FL03 45080 Registry: Edmonton Between: KE Appellant - and - CSM Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.A. Browne _______________________________________________________ Appeal from the Decision by The Honourable Judge J. C. Koshman Dated the 20 th day of October, 2014 ( Docket : FF903002261/II )

I. Introduction [1] This is an appeal by Ms. E from a 2014 decision of Koshman PCJ that denied her application for leave to apply for access toMr. M’s children. Leave to appeal was required because Ms. E in 2007 had her access to the Alberta Provincial Court restricted by aCourt that prohibited her from making further applications concerning her children, except with leave of the court. Ms. E, a diagnosedschizophrenic, had a history of frequent and unsuccessful court applications in relation to family matters. These relate to six lawsuitswhich involve children born from various relationships. [2] Ms.

E’s appeal raises a number of issues, but overall requires that the Court examine how litigants may be restricted fromaccessing court processes, and how decisions relating to those restrictions are subject to subsequent review. The Court must balance twoimportant principles. First, in Canada, a person has a constitutional right to access the courts so that “... if there is a justiciable right, thenthere must be a court competent to vindicate that right ...”: Canada (Human Rights Commission) v Canadian Liberty Net, (SCC), [1998] 1 SCR 626 at para 32, 157 DLR (4th) 385.

However, courts also have a jurisdiction to control their processes so thatthe courts’ functions are not abused. In the case of superior courts, that procedural jurisdiction flows from the courts’ intrinsic authorityso that it may serve its adjudicative role as a distinct branch of government: I.H.

Jacob, “The Inherent Jurisdiction of the Court” (1970)23 Current Legal Problems 23; BCGEU v British Columbia (Attorney General), (SCC), [1988] 2 SCR 214, 53 DLR(4th) 1. [3] Courts created by statute, such as the Provincial Court, possess only those powers that are allocated by legislation ornecessarily incidental to that. The Judicature Act, RSA 2000, c J-2, s 23-23.1 and the Family Law Act, SA 2003, c F-4.5, s 91(1)authorize Provincial Court judges to make orders that restrict a litigant from initiating or continuing a lawsuit, or making an application,except where permitted by the court.

This ‘gatekeeper’ function is very important to modern courts because of an increasingly welldocumented phenomenon of litigants who engage in repeated, meritless, and sometimes malicious court proceedings. These persons areoften called “vexatious litigants”, however, as Justice Shelley recently observed in Kavanagh v Kavanagh, 2016 ABQB 107 at para 64,what really defines this category of litigants is not so much intent, but effect: ... All misuse legal procedure in a manner that has no valid purpose, and, as a consequence, causes harm to involved litigants and thewaste of court resources.

While non-legal dictionary

definitions of “vexatious” focus on

an act being wrongful, harassing, malicious, orintended to annoy, the legal meaning of this word is broader. A vexatious proceeding is one that in effect abuses or misuses legalprocesses. II. Background [4] The parties lived together but were never married. They had two children: EEE, born in 2000 and DEE, born in 2002 [the“children”]. [5] Ms. E was for a time directly involved in parenting these children. Pursuant to a Court Order of December 2002, Ms. E andher former partner, Mr. M, had joint custody of the children. By July 2005, Mr.

M was granted sole custody and decision-making. [6] After a lengthy trial that concluded on April 2, 2007, Mr. M was granted a variation on the existing Parenting Order by KvillPCJ that: 1. gave Mr. M sole decision-making authority concerning the children’s’ mental and physical health; and 2. terminated Ms. E’s contact with the children until Child Welfare completed an assessment of Ms. E. [7] At this point the children were six and four years old. The trial judge found that it was not in the children’s best interest forMs. E to have any contact with the children.

She relied on evidence before the court that there was a genuine concern about Ms. E’smental health. She also noted that Ms. E appeared to show little empathy for the physical and emotional needs of her children anddemonstrated little understanding or regard for how her conduct affected them. [8] Mr. M’s application and the judgment terminated access until Ms. E underwent a psychological assessment. The latterrequirement was not included in the Order issued by the Court. Unfortunately, the actual written Order of April 2, 2007 simply stated that“Ms.

E shall have no further access until further order of the Court”. [9] It is not apparent to this Court whether Child Welfare ever did complete the relevant assessment of Ms. E, or whether anycourt ever considered an assessment in relation to Ms. E’s contact with these children. [10] Ms. E has not seen her children for 9 - 10 years. III. Preliminary Issue #1 - Was the April 2, 2007 OrderAuthorized by the Judicature Act or the Family Law Act? [11] An important first step for the analysis that follows is to determine whether the original April 2, 2007 Order that restrictedMs.

E’s access to the courts was made under the Judicature Act or Family Law Act, as that affects the potential scope of the Order, theappropriate appeal pathway, and Ms. E’s options to challenge an order that restricts her access to court processes. [12]

Part 2.1 of the Judicature Act, titled “Vexatious Proceedings”, permits the court or a person may apply to have an individualdeclared to have engaged in vexatious litigation, and then restrict their capacity to initiate or continue a legal proceeding.

Application 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Solicitor General, a Court is satisfied that aperson is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that (

a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, … without the permission of the Court. …

(7) A person against whom an order has been made under subsection (1) or (4) may apply to a Court for permission to institute orcontinue a proceeding in that Court and the Court may, subject to any terms or conditions it may impose, grant permission if it issatisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. [13] The Family Law Act, s 91(1) describes a simpler procedure: Frivolous or vexatious applications 91(1) Where the court is satisfied that a person has made a frivolous or vexatious application to the court, the court may prohibit thatperson from making further applications under this Act without the permission of the court.

(2) The court, before granting permission under subsection (1), may impose any terms as a condition of granting permission and makeany other order in the matter as the court considers appropriate. [14] There are significant differences between the Family Law Act and Judicature Act schemes. The Judicature Act requires noticeto be given to the Minister of Justice and Solicitor General.

This notice requirement is flexible, as the Alberta Courts have adopted aprocedure where interim vexatious litigant orders are issued and then become final after the Minister of Justice and Solicitor General hasbeen given notice and has chosen to not make submissions: R v Fearn, 2014 ABQB 233, 586 AR 182; Chutskoff v Bonora, 2014 ABQB389, affirmed 2014 ABCA 444, 588 AR 303.

While Veit J in Sikora Estate v Sikora, 2015 ABQB 467 at para 18 observed the Ministerrarely participates in vexatious litigant hearings. [15] What triggers court intervention is an abuse of its processes, and vexatious litigation is, by definition, abusive: R v Scott, (SCC), [1990] 3 SCR 979 at 1007, 116 NR 361; Wong v Leung, 2011 ABQB 688 at para 33, 530 AR 82; Chutskoff vBonora, at paras 80-85.

In Cox v Novosilets, 2014 ABQB 729 at para 19, Little J concluded that the criteria to determine whetherlitigation is frivolous and vexatious per Family Law Act, s 91 follows the same principles and targets the same indicia as a JudicatureAct, s 23(1) application. I agree, and at present Chutskoff v Bonora is the leading Alberta authority on that. [16] A third distinction between the Family Law Act and Judicature Act is that the Alberta Court of Appeal hears appeals ofJudicature Act order from the Provincial Court: Judicature Act, s 23(5.1).

However, an appeal of a Family Law Act vexatious litigationorder is to the Alberta Court of Queen’s Bench: Family Law Act, s 89; Provincial Court Procedures (Family Law) Regulation, Alta Reg149/2005, s 9. [17] The scope of a Family Law Act vexatious litigation order is also restricted to “further applications under the [Family LawAct]”, but a vexatious litigation order authorized under the Judicature Act may affect the capacity of a person to “institute or continue aproceeding”, and therefore is not restricted to a particular subject area, or to “applications”. [18] Finally, the Family Law Act, s 91(2) authorizes a Provincial Court Judge to create a precondition before a leave applicationmay be granted to permit a new “application”.

The Judicature Act does not appear to authorize an analogous pre-leave application‘gateway’ requirement for courts without inherent jurisdiction such as the Provincial Court. [19] Cook-Stanhope PCJ has also commented on the differences between these two vexatious litigant provisions in MAM v DJM,2013 ABPC 101 at para 123, 2013 CarswellAlta 492, and concluded that the provisions of the Family Law Act were intended to give thecourts recourse to a less onerous process by which to prevent repetitious court applications in family law matters under that act.

I agreewith that assessment. [20] I also conclude that the Family Law Act and Judicature Act vexatious litigant procedures are both available to an AlbertaCourt in a family law dispute. Each procedure has a different scope and procedural requirements. A court may choose either alternative,depending on the situational requirements of the litigation abuse. [21] The after trial April 2, 2007 Order of Kvill PCJ states “Ms. E is denied any contact with the child.” After review of atranscript of Kvill PCJ’s judgment, I conclude this Order is problematic in two senses. First, it omits the instruction that Ms.

E’s contactwith her children is “… terminated until such times as Child Welfare has completed - an assessment of the mother.” Second, I concludethat a parent cannot be prohibited from the opportunity to access to his or her children, and therefore Kvill PCJ must have made aVexatious Litigant Order that prohibited Ms. E from making further applications to access her children, except with leave of the court. [22] I therefore conclude this Order should have read that Ms. E was denied contact with her children: 1) until Child Welfare completed an assessment of Ms.

E; and 2) after Child Welfare had completed an assessment of Ms. E, Ms. E may apply to the Provincial Court for leave to make an applicationto access her children. [23] Framed in this manner it becomes clear that this Order is authorized under the Family Law Act. That legislation provides for a

pre-leave requirement in s 91(2), Ms. E is not permitted to apply for permission to file an application until Child Welfare completed its assessment. IV. Preliminary Issue #2 - Status of Subsequent Orders [ 24 ] On March 6, 2012, Ms. E applied in Provincial Court for leave to make an application in relation to her children. Andrew PCJ refused to grant leave on the basis that it was in the best interests of the children, and ordered: Leave to file is not granted, and if Ms. E files an Affidavit that includes medical evidence to show a change in circumstances, she may re apply to the Court. ...

This Claim shall be and is hereby adjourned Sine Die, pending Ms. E bringing medical evidence to re-apply for Leave of the Court. [ 25 ] I conclude this is, operationally, a new Vexatious Litigant Order under Family Law Act , s 91(2). Andrew PCJ has prohibited Ms. E from making any further applications in relation to her children unless she provides medical evidence that shows a change in her circumstances. [ 26 ] The next relevant Court Order was made on October 20, 2014 when Koshman PCJ refused to grant leave to Ms. E to file an application in relation to her children.

On November 17, 2014 an amended version of the October 20, 2014 Order was filed which adds a new direction: “The Applicant shall not have leave to file any further Claims with regards to this matter.” This is more than a denial of leave to file an application in Provincial Court, but instead is a change on the previous March 6, 2012 Family Law Act Vexatious Litigant Order. [ 27 ] Koshman PCJ purported to take two steps in the November 2014 proceeding, he: 1. denied Ms. E’s application for leave to make an application to have contact with the children; and 2. varied the March 6, 2012 Oder of Andrew PCJ to deny Ms.

E permission to file further leave applications under the Family Law Act in relation to her children. V. The Current Proceeding [ 28 ] Ms. E, on November 18, 2014, filed an appeal to this Court in response to Koshman PCJ’s November 17, 2014 Order. She argues she had complied with the Varied Vexatious Litigant Order, and seeks a contact order with “specified access” to her children. This led to several orders from myself. The first followed an appearance on January 21, 2015 when it came to light that Mr. M had not been served Ms. E’s appeal. I adjourned the matter to permit substitutional service on Mr. M.

Next on April 1, 2015, I ordered that Mr. M provide Ms. E with an envelope of photographs, report cards, a list of sports and music activities, awards the children had won, and a brief

summary of the children’s personalities and health state. The matter was then adjourned to June 15, 2015. No information was provided. [ 29 ] I recommended Ms. E write to Filice PCJ concerning review of her situation. Ms. E has sent letters to Filice PCJ requesting leave on July 16, 2015 and September 3, 2015. The July 16 th letter was accompanied by materials that outlined the history of the matter and recent education, medical and character letters. On September 13, 2015, a further letter was sent to Filice PCJ along with a copy of an updated letter from Ms. E’s treating psychiatrist, Dr.

Addington. [ 30 ] On September 18, 2015, Filice PCJ denied leave to Ms. E making an application concerning her children: Having now had the benefit of reading the materials you forwarded, I see that you are continued with your education and employment and that you appear to be doing well on those fronts. I also see that you have ongoing dealings with Madame Justice Browne in the Court of Queen’s Bench and that she recently instructed you on what you might do in terms of trying to bring a new application in the Provincial Court.

Of particular note, I see that Justice Browne instructed that you also provide me with an updated letter from a psychiatrist . . . I cannot grant your request to commence further proceedings until I am satisfied that the historical concerns regarding your mental health have been alleviated. [ 31 ] Filice PCJ then expresses concerns that she has about Ms. E’s sincerity in pursuing psychiatric issues and says: Given the foregoing and given our serious mental health history, I cannot agree to your request at this time.

I would urge you to continue with psychiatric care and then, perhaps, in a year’s time – as suggested by Dr. Addington – you can make your request again. That said, you would have to demonstrate stability and compliance with treatment. [ 32 ] Ms. E, on January 5, 2016, wrote to renew her request for review of Koshman PCJ’s November 17, 2014 Order, and seeking an order that permits Ms. E have the opportunity to speak to her children by telephone, or visit them in a public place. VI. Issues [ 33 ] Unfortunately, this matter has developed in a somewhat unstructured manner.

This is the result of a number of factors, some of which could have been avoided: 1. Ms. E is unrepresented, but obviously has been making a real effort to advance her actions in an organized, documented manner. Nevertheless, this has led to a longer and less focussed process than would be ideal.

2. My preliminary analysis was necessary to evaluate the legislative basis on which Ms. E’s access to the Provincial Court of Alberta was restricted. I simply observe that it is helpful for a hearing judge to make that information clear. 3. The nature and requirements for the process by which Ms. E may seek leave to make an application in her family law dispute are not clear, and that has meant the record for review is not ideal. 4. Various steps in this process have blended reviews, variations, and new court orders in a manner that could have been better clarified and documented.

This criticism applies to my own steps and decision as well. Additional structure would have provided a more efficient process. [ 34 ] One objective for the reasons that follow is to provide guidance on processes and documentation to avoid certain issues that I have identified. I wish to stress this is not a criticism of the lower court judges but rather acknowledges that restriction on court access by vexatious litigants is a comparatively new process, and there is a need to develop ‘best practices’. A.

Detailed Restricted Filing Vexatious Litigant Court Orders [ 35 ] A first issue is that review of the Court Orders, which have been granted under Family Law Act , s 91 to restrict Ms. E in filing applications in the child custody matter, shows these Orders provide very little guidance on the procedure by which “permission” may be sought.

It would be helpful if that had been made explicit. [ 36 ] I recommend that in the future court orders of this kind should include a number of elements to assist persons who are typically self-represented litigants to make informative and focussed applications for “permission”, for example: 1. The legislation that authorizes the restriction to access court processes. 2. A description of what activity has been restricted, for example in a Family Law Act , s 91 order whether the vexatious litigant has been restricted from filing any application, or instead certain kinds of applications. 3.

What preliminary requirements or preconditions may be necessary prior to a leave application? For example, in the present action evidence of some kind of mental health review was a necessary precondition for Ms. E to make a leave application. MAM v DJM , 2013 ABPC 101 at paras 128-130 had the court require as preconditions for a new leave application that five years pass, and that psychiatric evidence be provided on the condition of a grandchild. A similar requirement for a change in circumstance was a prerequisite for another leave application in SC v JD , 2013 ABPC 220 at para 62 . 4.

The documents and information that are required for a proper leave application to obtain permission to file and application. 5. To what judge or judges the application should be directed. 6. In what forum the application will be heard, typically in open court and on the record or thorough paper appreciation. 7.

That notice of the leave application to other parties is required, and to any other persons as the court directs. [ 37 ] Recent cases such as Henry v El , 2010 ABCA 312 at para 7 , 193 ACWS (3d) 1099, leave denied [2011] SCCA No 138; Chutskoff v Bonora at para 135 ; Re Boisjoli , 2015 ABQB 629 at para 110 , 29 Alta LR (6th) 334 provide examples of detailed vexatious litigant orders that include components such as those listed above. [ 38 ] The vexatious litigant orders identified above, and the recommended general components of a vexatious litigant order, presumes that a leave to file application is conducted in court.

I do not believe that is an absolute requirement. Ontario has implemented a ‘show cause’ procedure that authorizes courts to terminate vexatious and frivolous litigation via a document-based process that does not require any in-court proceedings, but still permits litigants to advance their argument. This procedure was recently confirmed in Scaduto v Law Society of Upper Canada , 2015 ONCA 733 , 343 OAC 87, leave denied [2015] SCCA No 488.

I conclude a ‘paper only’ leave process that does not involve in-court submissions, with the possibility of additional in-court submissions on application or where otherwise warranted, is a viable alternative. B. Challenges and Leave Applications to a Vexatious Litigant Order [ 39 ] A vexatious litigant order under either the Judicature Act or the Family Law Act is a court order with an ongoing effect.

A prohibition against initiating or continuing in-court activities created by vexatious litigant order ( Judicature Act ) or further applications in a particular matter ( Family Law Act ) a may be challenged or circumvented in a number of ways: 1. the vexatious litigant order can be appealed to a higher court; 2. a vexatious litigant may at a later point may apply to an appropriate court to have the vexatious litigant order varied; and 3. a vexatious litigant may make a leave application for permission to take litigation steps on the basis that the action is not an abuse of process. 1.

Appeal of a Vexatious Litigant Order [ 40 ] A person subject to a vexatious litigant order has an absolute right to challenge that decision via an appeal to a superior court ( Bianco v 935074 Alberta Ltd. , 2008 ABCA 124 at paras 8-11 , 429 AR 94), unless leave to appeal is itself required by statute ( Wong v Giannacopoulos , 2011 ABCA 277 at para 3 , 515 AR 58). In 2014, the Rules were amended to require that any person who appeals a

vexatious litigant also requires leave to appeal, and that denial of leave is final: Alberta Rules of Court, Alta Reg 124/2010, Rule 14.5(1)(j); Chutskoff Estate v Bonora, 2014 ABCA 444 at para 1, 588 AR 303. Notably, this leave requirement applies to “... a person who hasbeen declared a vexatious litigant ...”, so that presumably applies to any vexatious litigant declaration under the Judicature Act, theFamily Law Act, or under a superior court’s inherent jurisdiction. [41] I note that the interaction of Rule 14.5(1)(

j) and Judicature Act, s 23(5.1) create different paths and procedures for appeals ofvexatious litigant orders: 1. Appeal of a vexatious litigant order under the Judicature Act made by either the Alberta Provincial Court or Court of Queen’sBench requires leave, and if leave is denied that decision is final. 2. Appeal of a Family Law Act vexatious litigant order made in the Provincial Court is an appeal of right to the Alberta Court ofQueen’s Bench. 3.

Appeal of an Alberta Court of Queen’s Bench Family Law Act vexatious litigant order or a vexatious litigant order made underthe court’s inherent jurisdiction requires leave, and if leave is denied that decision is final. [42] Pawlus v Pope, 2004 ABCA 396 at para 9, 357 AR 347 indicates that an appeal of a vexatious litigant order will only besuccessful if the hearing judge “erred in law or was unreasonable”. 2. Application for Leave by a Vexatious Litigant [43] Alberta jurisprudence provides a standard of proof for a successful vexatious litigant leave application.

In Wong v Leung,2012 ABCA 156 at para 5, 524 AR 338 Côte JA concluded that leave to proceed with an application or action requires facts to establishan arguable case: ... obviously any motion under it for leave to sue or appeal would have to give enough facts to show an arguable non-vexatious case. [44] Bald allegations are not enough, the vexatious litigant must show a basis upon which their application could succeed (Wong vLeung, 2012 ABCA 290 at para 3, 536 AR 253) and demonstrate the proposed action or application “... is not an abuse of process andthere are reasonable grounds for it to proceed.”: para 10.

Perras J in Kadar v 720294 Alberta Corp., 2002 ABQB, 1019 329 AR 321 citedVeit J in Hillcox v Morrow (1995), (AB KB), 175 AR 141 for the explanation that a vexatious litigant must prove aprima facie case that is not an abuse of process. [45] If a Family Law Act vexatious litigant order includes a s 91(2) precondition then that precondition must be satisfied before theapplication itself is tested to see if it has an arguable, non-vexatious basis. Reframed, a leave application that does not satisfy all s 91(2)preconditions is inherently an abuse of process and should be rejected. C.

Appeals of a Denied Leave Application [46] Ms. E’s application to appeal Koshman PCJ’s decision was not subject to a vexatious litigant order, since Ms. E is onlyrestricted from her activities in the Provincial Court of Alberta. That makes her leave application an application by right. That alsodistinguishes Wong v Leung from the current appeal. VII. Ms. E’s Appeal [47] I now turn to Ms. E’s appeal.

First, she is in fact challenging two separate decisions of Koshman PCJ: 1. a decision to deny leave to her application, and 2. a variation on her previous Family Law Act vexatious litigant order to prohibit any future leave applications. [48] Ms. E’s appeal however requests that I order she should be permitted contact with her children. I cannot order that remedy.Her litigation at the Provincial Court has not reached that stage. The most I can do is review the decision of Koshman PCJ. A. The October 20, 2014 Hearing [49] On Oct. 20, 2014, Ms. E on her own behalf appeared before Koshman PCJ with two applications.

The hearing was framed asan application for leave to vary the April 2007 Kvill PCJ Order and regain some contact with her two children. Ms. E supported herapplication for leave with doctor’s reports, and letters from family, school and church. [50] I have concluded that at this point Ms. E’s litigation activities instead governed by the March 6, 2012 Order of Andrew PCJ. [51] I believe it is useful to review in some detail how the proceeding developed. Koshman PCJ acknowledged the requirementthat Ms. E seek leave to make applications to the Court. She provided him with the April 2007 Order.

He then stated, at 3, lines 34-36: The Court: But that does not matter, Ms. E. You - - Judge Kvill cut off any access to these children. Now, there is a reason that -- sowhen is the last time you saw these children, six years ago? Ms. E: No. More like 2006, so - -

The Court: Eight years ago? Ms. E: About there, yes. I was told that you can request for the children to have a say in if they want to see the natural parent or not; is that true? The Court: Well, I mean the father of these children could ask them that. But this order says - - Ms. E: He’s not going to do that. The Court: This order says that - - just where is it; that you are denied any contact with that child - - with those children. Ms. E: Yeah, I know, until further order of the Court is says. The Court: No. Well, I mean it remains in effect until further order of this Court. Ms. E: Yeah.

So that’s why I - - I bring it forward. The Court: But I do not have a parenting order. You just gave me a guardianship order. I do not have a parenting order. Who had the parenting - - was there a parenting order? Ms. E: There was a variation of parenting - - The Court: what is it you want; you have not seen these children for eight years? Ms. E: Yeah. I would like to see the children, ’cause I haven’t seen them for that long … [ 52 ] At this point the discussion turns to another case involving Ms. E; then returns to the matter being appealed.

The Court: Well, what you have got before me is an application for me to decide whether you should be allowed to proceed with this, and if I say, No, then that is the end of the matter. It is not going to go any further, and nothing is going to happen. But I am - - Ms. E, I am not always convinced I can rely on what you say because - - I am not going to allow you to proceed on the application with respect to the two children, EEE and DEE - - Ms. E: DEE? The Court: - - DEE. I deny your leave to proceed with this matter. Ms. E: So is it like ever or - - The Court: Yes, it is forever right now.

I guess you can keep making these applications, but the problem is that at some point somebody is going to stop you making these applications. That is why those orders were put in place, because you keep filling these applications. [ 53 ] The transcript continues after a discussion about Legal Aid, at 8, lines 27-32: Ms. E: Yeah. And I haven’t -- I just want to see them. I -- I haven’t spoken to them. The Court: Well, there is an order saying -- denying you having any contact with those children. There was a reason -- that was after a trial, as I understand it. Ms.

E: So - - and then they made me go see doctors, so I did what you guys told me, and the doctor’s report shows up positive. The Court: Yes, I saw a letter. Ms. E: It’s positive, it’s not negative. It doesn’t discriminate me or incriminate me in any way, shape or form. It’s says I’m trying to do the best that I can with what I have, and I’m working, I go to school. I moved back with my mother, just so I can have time with the kids. Like if they wanted to come visit, they can come visit. I can pick them up. I used to live with them. I used to be their guardian for the first year of their lives.

I lived with the guy - - I lived with F, and I lived with M, so I lived with both of them for the first year, so just because they got remarried doesn’t mean that all of a sudden they try to kick me out of their lives, like - - like I’m nothing; right? But I still feel that I’m their guardian for - - for some reason. … The Court: Well, first I am going to deal with your application relating to EEE and DEE. I am making an order refusing you to file any further documentation or take any further proceedings with respect to this matter. Ms. E: Up until when; is there a dead - - . . . Ms.

E: So you’re saying I’ll never get to see them again? The Court: Well, you may or may not. That will depend on them. They are old enough to make that decision. …

Ms. E: Yeah, until further order of the Court. The Court: Yes. Ms. E: So what does that mean exactly? The Court: Well, there is a reason you are required to apply for leave, it is because you have filed so many actions and a Court is not going to continue having -- allowing this to occur. And so what it means is, I am denying that any matter be heard with respect to this current application that you are trying to seek. … The Court: Okay. And if you keep doing that, we are going to stop you from even filing that application for leave.

Because what the order said, and there was more than one order, is you cannot make any further applications without leave of this Court. Ms. E: Yes, so that’s why I came here, to try -- try to do that. The Court: Yes. And I am saying I am not giving you leave on those children. Ms. E: And you don’t even have a reason why, you’re just saying you’re not, you don’t have a reason. The Court: Well yes, I -- the reasons I gave you is one, these children are old enough to make a decision whether they want to see you or not; 12 and 14 is old enough.

And, secondly, there was an order made that you were not to contact, and my recollection is, and from the history of this matter, there was a good reason that that order was made, and it was made after a trial. Ms. E: And then I went to get the psychological assessment, like they wanted -- The Court: Yes. Ms. E, you know, it is nice that you appear to be doing well, but that report does not give you a clean bill of health; okay? Ms. E: So will I ever have a clean bill of health?

The Court: I do not know what -- you know, this is a relatively new doctor, he does not know your background, he does not know your family background, you are new to this doctor; right? Ms. E: Well, actually I’ve been seeing them for a about a year. The Court: Well, he does not have a lot of information on you because he does not -- he says that there is -- it is lacking in information. [ 54 ] Koshman PCJ returned to the other matter once more, and then dismissed Ms. E. [ 55 ] It is apparent reviewing the transcript and from Ms.

E’s application and submissions that she was attempting to satisfy the mental health precondition for making a Family Law Act vexatious litigant leave to file application. I do not believe Koshman PCJ turned his mind to the substance of Ms. E’s leave application. There is no discussion as to what the medical report said or what was missing from that report. There was no suggestion as to how Mr. E was to seek input from her sons. [ 56 ] Koshman PCJ appears to indicate that contact is possible if it is initiated by the children. However, the amended November 17, 2014 Order says Ms.

E “… shall not have leave to file any further Claims with regards to this matter.” No process is identified to determine the voice of the children. B. Is the November 17, 2014 Order Ultra Vires ? [ 57 ] As a first issue I will review the substance of the November 17, 2014 Court Order. Its plain language appears to close all possible future applications by Ms. E to access her children. I conclude that this Order is outside the authority provided to the Provincial Court under Family Law Act , s 91.

Family Law Act , s 91 does not permit a court order that prohibits a person “from making further applications”, but rather “from making further applications … without permission of the court .” [emphasis added].

The November 17 Order, as written, is a complete block on further applications, and I conclude that does not comply with the text of s 91(1). [ 58 ] I also conclude that the Order is not a valid precondition, per Family Law Act , s 91(2). “[T]erms as a condition of granting permission” must be a condition that could, theoretically, be met. [ 59 ] This defect in the November 17, 2014 Order is a question of law alone, and therefore is reviewed on a correctness basis. I therefore conclude that the amendment added to the November 17, 2014 Order is ultra vires and is therefore struck out. Ms.

E is entitled to make further applications to have contact with her children. [ 60 ] As a point of clarification, I conclude that a ‘time out’ period such as was ordered in MAM v DJM is a potentially valid Family Law Act , s 91(2) precondition. A delay period required before further applications to seek leave to take litigations steps is always an appropriate restriction on the court activities of a person who has been declared to be a vexatious litigant. That is doubly true for family law litigation.

The only basis on which an appeal review may challenge a delay period precondition is on whether the delay is, or is not, reasonable. That, of course, will depend on the vexatious litigant, the litigation scenario(

s) in question, and other contextual factors.

C. What Conditions Must Ms. E Satisfy Prior to an Application to Access HerChildren? [61] Judges are presumed to know the law: R v Burns, (SCC), [1994] 1 SCR 656, 42 BCAC 161. When anappeal justice, such as myself, reviews the decisions and reasoning of a trial judge, I am to read his or her judgment in context. A hearingjudge is not expected to expound on well settled law, but to explain what was decided and why. [62] After careful review of the October 20, 2014 transcript I see no indication that Koshman PCJ removed the Family Law Act, s91(2) precondition for leave to appeal that Ms.

E first demonstrate a mental health state that makes contact between her and her childrensafe. That was the reason access was originally restricted in 2007, and that objective remains valid to protect the best interests of thechildren. This is a precondition that was reiterated by the March 6, 2012 Order of Andrew PCJ. That precondition is not the subject of anappeal by Ms. E, and I conclude it remains in effect. [63] I also conclude that the November 17, 2014 Order omits another aspect of Koshman PCJ’s decision. I conclude that he addeda new s 91(2) precondition, that Ms.

E’s access restriction may be lifted if the children want her to have permission to apply for access. [64] The decision by Koshman PCJ to make the children’s approval of a leave application a precondition is a question of mixedfact and law, and therefore reviewable if it is unreasonable. It defies logic to make a precondition of a leave application for access tochildren that those children now 12 and 14 years old agree to the application.

It is only on the application actually being made and noticebeing served on the father, that the children would even be aware of the application or that their mother was interested in seeing them orhaving some kind of relationship with them. The decision of Koshman PCJ is unreasonable and that portion of the order must be setaside. [65] I am satisfied that due process is lacking in Koshman PCJ’s review of the leave application and the evidence presented at theleave application.

I am satisfied that the 2014 leave application in front of Koshman PCJ that he did not consider the letter from themedical professional, nor did he discuss what was lacking from that medical report and that the matter should be reviewed again byanother judge. I set aside his Order and refer this matter to another Provincial Court Judge for review of the leave application. [66] The standard of review for a denial of a Family Law Act, s 91 vexatious litigant order is correctness on a matter of law, andreasonableness on questions of fact and mixed fact and law.

Here, Koshman PCJ’s decision was whether in light of the evidence of Ms.E’s mental health that there had been a chance in circumstance that made it safe for her to potentially contact her children. This is aquestion of mixed fact and law, including the history of the mother and her children’s interactions, Ms.

E’s mental health condition, andthe overarching principle that the Court should make its decisions focused on the best interests of the children. [67] I therefore order that this matter be returned to Filice PCJ or her delegate for consideration of up-to-date medical and othermaterial that may be relevant to a leave application. If the leave application is not granted then the Provincial Court Judge must providereasons and the deficits of the application and the process or methodology that the applicant should follow in the future.

If a leaveapplication is granted, then the Provincial Court Judge must provide the methodology to give notice to the father and to the children andthe methodology to determine the children’s best interests. It would be highly recommended that Legal Aid be involved to assist Ms.

Ewith this complex process and that perhaps through Legal Aid, the children can be appointed counsel in this most difficult situation sothat a proper, well-founded decision might be made at the Provincial Court level. [68] In circumstances where it is appropriate to deny access to a parent, it is imperative to provide some review mechanism toassist a self-represented individual to understand how to access the Court and what information would be of assistance to the Court inassessing that application. [69] Conclusion, I order that this matter be returned to Filice PCJ or her delegate for review of the leave application in view of theup to-date information that Ms.

E will provide. D. The 2014 Leave Application [70] The November 17, 2014 Order is struck out as ultra vires. The March 6, 2012 Order remains in force. [71] This Court takes no position on whether Ms. E has demonstrated a change in circumstances that meets the Family Law Act, s91(2) precondition set in the March 6, 2012 Order. That is an issue for the Provincial Court. Dated at the City of Edmonton, Alberta this 21st day of June, 2016.

B.A. Browne J.C.Q.B.A. Appearances: Ms. E for herself