DM v Reeves, 2016 ABQB 68

Court of Queen ’ s Bench of Alberta Citation: DM v Reeves, 2016 ABQB 68 Date: 20160202 Docket: 1401 10710, 1401 10856 Registry: Calgary Between: 1401 10710 DM and MM Plaintiffs - and - Jonathan (Jon) Reeves, Christina Tortorelli, Val Nalund, Sam Mcleod and Donika Collins Defendants Between: 1401 10856 DM and MM Plaintiffs - and - Child & Family Services Authority, Christina Tortorelli, Associate Director (Executive Manager), Val Naslund, Manager, Same McLeod, Team Leader, Donika Collins, Case Worker

Defendants Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No one may publish the name or photograph of a child, or of the child's parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of J.T. Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiffs DM and MM are the paternal grandparents of three children (“the children”).

They commenced two actions against the Director of Child and Family Services (“CFS”) for damages arising from the Director’s successful applications for custody and then guardianship of the children pursuant to the Child, Youth and Family Enhancement Act (“CYFEA”). [ 2 ] The two actions were commenced in the midst of a 16 day trial in Provincial Court in which the Director sought permanent guardianship orders with respect to the children. The Court awarded permanent guardianship to the Director a few weeks later. [ 3 ] The actions do not relate to injury caused to the children while in the care of the Director.

The substantial abuse suffered by the children happened prior to them being taken into custody by the Director. [ 4 ] Rather, in these actions, the plaintiffs seek what I might refer to as ‘separation’ damages, on their own behalf and on behalf of the children. In other words, damages resulting from the separation caused by the Director taking custody of the children pursuant to the CYFEA. [ 5 ] The defendants have applied for

summary dismissal of the claims against them. I am granting those applications and dismissing the plaintiffs’ claims. My detailed reasons follow but I summarize them here: (

i) To the extent that the children have suffered damage, the plaintiffs are neither legal guardians nor the children’s litigation representatives. They have no status to bring proceedings on the children’s behalf. (ii) To the extent that the claim is for ‘separation’ damages caused to the plaintiffs as grandparents, the claim rests upon the premise that they were wrongfully denied custody of or access to the children. The denial of custody and access is pursuant to orders of the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta.

The plaintiffs’ claims are not permissible as they are a collateral attack on those orders. [ 6 ] There is no doubt that the children suffered abuse prior to being taken into custody by the Director, and I sympathize with the plaintiffs and understand their distress in that regard. The reason that the children were taken into custody by the Director is that they were being abused. [ 7 ] The plaintiffs say that the abuser was the maternal grandfather.

The maternal grandfather has denied abusing the grandchildren, but it is noteworthy that on unrelated matters he has been sentenced to prison for sexual assault and incest. [ 8 ] On the other hand, CFS placed evidence placed before the Provincial Court indicating that it was the plaintiffs’ son (biological father to the children) who had abused them. This is denied by the plaintiffs. [ 9 ] Here is a brief chronology of events: • Dec 27, 2011 – the biological mother took the children to Saskatchewan. There is no evidence before me specifically setting out how CFS was involved in this occurrence.

Without more, the mother as guardian would have the right to take her children to Saskatchewan. • Dec 29, 2011 – The plaintiffs were extremely unhappy with the children being taken by their mother to Saskatchewan and so advised CFS. A CFS employee contacted the plaintiffs to advise them that the children were ‘very safe’ • January 6, 2012 – the father (son of the plaintiffs) obtained an ex parte order from Alberta Provincial Court that the children were to reside with him in Calgary, and authorizing the police to assist in retrieving the children from Saskatchewan.

• January 7, 2012 at 1:45 AM - the RCMP assisted in recovering the children and turning them over to the plaintiffs, who brought them back to Alberta. • March and April 2012 – CFS investigated the issue of whether the children were being abused and, if so, by whom. • April 28/29, 2012 – pursuant to a court order the children’s mother visited them at a hotel in Calgary. Despite being prohibited by the court order, the maternal grandfather was present. The plaintiffs allege that he again abused the children at the hotel. • May 2, 2012 – The children were apprehended pursuant to

section 19 of the CYFEA which provides that, if a Director has reasonable and probable grounds to believe that a child is in need of intervention, the director may make an ex parte application to a judge or to a justice of the peace for an order authorizing the director to apprehend the child. • May 11, 2012 – the Provincial Court ordered that, pending a hearing, the Director was to have custody. The plaintiff grandfather was present at this hearing. • June 20, 2012 – the Director was granted an ‘Order for Initial Custody’. This was consented to by both the mother and father (son of the plaintiffs).

The public, including the plaintiffs, were excluded from the courtroom during this hearing. • August 22, 2012 – the plaintiffs’ appeal of the June 20, 2012 initial custody order was dismissed. • July 3, 3013 – by this time the plaintiffs had applied for guardianship of the children, and the Director had applied for a permanent guardianship order.

On this date the plaintiffs were granted an order for disclosure of certain documents held by the Director. • September 5, 2013 – this is the last date that the Director allowed the plaintiffs to visit the children. • November 5, 2013 – the Court of Queen’s Bench declined the plaintiffs’ applications for, among other things, a return of the children, and instead directed that the plaintiffs were barred from bringing any other proceedings in the Court of Queen’s Bench until such time as the Provincial Court guardianship hearing had been concluded. • December 5, 2013 – Provincial Court modified the initial interim custody order of June 20, 2012 by providing, among other things, that the plaintiff grandfather should have no contact whatsoever with the children other than that approved in advance by the Director and specified in writing.

Another provision was added authorizing a Peace Officer to arrest and bring before the Court anyone who failed to comply with the Order. • March 3, 2014 – the Alberta Court of Appeal dismissed the plaintiffs’ appeal of the order of November 5, 2013. • March 3, 2014 – the Provincial Court guardianship hearing began and continued for 16 days. The decision was rendered on October 22, 2014. • September 30, 2014 – while awaiting the decision of the Provincial Court the plaintiffs commenced action # 1401-10710 against various CFS employees for financial compensation. The claim is long, rambling and disjointed.

It contains many references to evidence brought forward in the Provincial Court hearing.

The gist of the claims are that CFS: o wrongfully allowed the children’s birth mother to take the children to Saskatchewan where they were abused by their maternal grandfather. o wrongfully allowed the children’s mother to visit them in a hotel in Calgary where they were allegedly again abused by her father, then instructed the emergency room doctor who subsequently examined the children to destroy evidence obtained during that examination. o wrongfully encouraged the police to pursue the plaintiffs’ son (biological father) for the abuse. o hired incompetent or biased experts to justify its assertion that the children had been abused by the plaintiffs’ son. o brainwashed the children so that they would blame their biological father for abusing them. o wrongfully obtained the May 2, 2012 apprehension order. o placed the children in foster homes where their needs were not met. o disparaged the plaintiffs to their own relatives and within the Jewish community. o attempted to bully the plaintiffs into accepting CFS’s view as to who had harmed the children. • October 3, 2014 – the plaintiffs commenced a second action # 1401-10856 against four of the five CFS employees named as defendants in the previous action and against CFS (the Province) itself.

Amongst other things it seeks “adequate physical punishment for the bureaucratic civil servants who lost sight of what is in the best interests of the children”. Some of its assertions are that: o the plaintiffs’ rights under

section 2 of the Charter had been infringed as the orders granted against them do not prescribe reasonable limits to the interference with their freedom of conscience and religion; their freedom of thought, belief, opinion and expression; their freedom of peaceful assembly; and, their freedom of association. o the plaintiffs’ mobility rights under

section 6 of the charter were breached by court orders prohibiting them from driving or parking a vehicle on public streets where they might meet up with the children.

o the plaintiffs’ rights under

section 7 of the Charter were curtailed, in that the “removal of the children from us by [the CFS] infringed upon both the childrens’, and our, right to security”. o the apprehension of the children was contrary to the protection from arbitrary detention under

section 9 of the Charter. o CFS breached

section 12 of the Charter by inflicting on the plaintiffs cruel and unusual punishment by depriving them of access to the children. o the plaintiffs suffered discrimination forbidden by section 15(1) of the Charter in that the actions of the CFS have prevented the plaintiffs from passing on to the children their Jewish heritage. • October 22, 2014 – permanent guardianship orders were issued in favour of the Director following the 16 day hearing in Provincial Family Court.

Here are references to some of the observations made by the Family Court: o The hearing concerned applications for private guardianship orders by the plaintiffs and their eldest son (uncle to the children) and applications for permanent guardianship orders by the Director. o The father of the children did not attend the hearing. He did consent to the guardianship sought by his parents and eldest brother. o The mother did not consent to any order authorizing guardianship by anyone other than herself.

She attended 11 of the 16 hearing days but did not testify. o The eldest son (uncle) testified but the plaintiffs chose not to testify. o The plaintiffs and their eldest son represented themselves at the hearing.

The eldest son did not attend for 12 of 16 hearing days. o “the [plaintiffs’] entrenched position is difficult to comprehend when after the May 2, 2012 apprehension, the compelling and detailed evidence began to emerge that both the biological parents were involved in some sexual abuse of the daughter and the father further abusing [one of the other children].” o “[One social worker] was involved in the May 2, 2012, apprehension and was dismayed to learn that [the plaintiffs] did not listen to the instructions to not leave the children with [their father].

When she arrived to apprehend, only the youngest child was with [the plaintiffs], the other two siblings were at [the father’s] house with [the father and his elder brother]”. o A caseworker testified that the eldest child stated that “he did not want to talk about [his sister’s] secret. He did state that ‘[the plaintiff grandfather] told me not to tell the truth – not to talk to you – to sit and cry’.” o “[The same caseworker] testified about the lengths that the Director went to in order to ensure that the children retained some contact with the Jewish part of their heritage.

This included liaising with Jewish Family Services and [the plaintiffs], time and respite weekends with a Calgary Jewish family and the enrollment in the Calgary Jewish Academy, for the eligible children, at a cost of $9,000 a year per child, paid for by the Director (taxpayer). This Court remarked how many a mother in N.E. Calgary might be relieved if her children, while apprehended, were sent to private schools, paid for by the taxpayer.

One difficulty with the Calgary Jewish Academy was that it did not want the children enrolled if it meant dealing with [the plaintiffs], as they were deemed too difficult to work with and had accused people at the school of being anti-Semitic.

This is a constant and recurring theme with [the plaintiffs], being perceived as too difficult to work with and accusing others of being anti-Semitic.” o “Another disturbing piece of evidence repeated throughout this hearing came from witnesses who felt their emails were compromised or breached. [The plaintiff grandfather] would show up at the foster home, the foster father’s office, the Church, the supermarket, the swimming pool, several times when somehow he knew the children would be taking swimming lessons. [The plaintiff grandfather] would telephone and email the foster home, all contrary to explicit and written instructions from the Director’s workers not to.” o “On August 22, 2013 [the plaintiff grandfather] showed up at Jewish Camp, when he was not supposed to know [the granddaughter] was there.

He approached her and told her to keep it a secret. The Court finds that this is an egregious lack of insight on [the plaintiff grandfather’s] part to tell a six-year-old girl, who everyone acknowledged was a victim of sexual abuse (only the name of the perpetrator is an issue), to keep a secret.” o The plaintiffs were called to the Director’s Hunterhorn office on September 5, 2013 to discuss consequences for the continuous breaches of directions from CFS.

It was reported that, on September 5, 2013, a CFS employee overheard the plaintiff grandfather saying to his grandson “when you come home with us” and that the plaintiff grandmother was whispering to her granddaughter, who stood up and yelled ‘no, [her maternal grandfather] did not hurt me – he did not hurt me’, whereupon the plaintiff grandmother said loudly ‘She has been telling lies for over a year now’.

The response was that access by the plaintiffs was suspended immediately and indefinitely. o “At an earlier visit in October 2012, it was reported that [the plaintiff grandfather] whispered to [the granddaughter], where [the granddaughter] stated ‘No, Abba [Hebrew for father] hurt me’. The [plaintiff grandmother] then said to [the granddaughter] ‘God’s book tells us not to lie’. [The CFS employee] felt that this behaviour by [the plaintiffs] just kept happening and continued to traumatize the children.

Now [the plaintiff grandmother] is showing a callous disregard towards her granddaughter by not believing the child’s allegations of sexual abuse; she has been caught trying to plant a different version into the belief of this child.” o “This Court makes a finding that [the plaintiffs] and [their eldest son] are not suitable as guardians or fit to be parents. It would not be in the children’s best interests to appoint them as guardians notwithstanding that the legal guardians are unable to act in their best interests as well.

I find that none of the [plaintiffs’] family applicants are capable of protecting the children at this time. The Court finds that [the plaintiffs] would be relentless in trying to change the [children’s] belief of their sexual abuse, which would cause them, at the very least, emotional harm.”

o “I will be silent on the issue of access to the non-guardians [the plaintiffs and their eldest son]. I am satisfied that the Director is aware of the concerns facing those children and their therapy for abuse and sexual abuse – predictably on going. I am satisfied that they (the Director) are in the best position as Guardians to determine when and under what circumstances access may occur – if it is to occur at all – working to care collaboratively with the children’s therapists. I again note that access is for the children.

It is to benefit them, not any adult”. • November 25, 2015 – the plaintiffs’ appeals from the guardianship orders of October 22, 2014 were dismissed by the Court of Queen’s Bench. The action brought on behalf of the grandchildren [ 10 ] Both actions commenced by the plaintiffs seek damages on behalf of the children arising from them having been separated from their grandparents pursuant to steps taken by CFS pursuant to CYFEA. [ 11 ] Rule 2.11(

a) of the Rules of Court provides: Unless otherwise ordered by the Court, the following individuals ... must have a litigation representative to bring or defend or to continue or to participate in an action ... (

a) an individual under 18 years of age; [ 12 ] Even if the plaintiffs were appointed as litigation representatives of the children, the actions brought are a collateral attack on the custody and guardianship orders described previously in these reasons. Abuse of Process [ 13 ] Both actions commenced by the plaintiffs and purportedly on behalf of the children seek damages arising from the forced separation of the plaintiffs from the children.

As detailed in the prior chronology, that separation was authorized by orders granted by the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta pursuant to CYFEA. [ 14 ] To the extent that the orders were appealed by the plaintiffs, those appeals have been unsuccessful. [ 15 ] In Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 , Arbour J explained the nature of the doctrine of abuse of process: ...the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" ...

Goudge J.A. expanded on that concept in the following terms at paras. 55-56 [citations omitted]: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of this procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [ 16 ] In Alberta v W. (B.J.) 1990 ABCA 300 , the Director of Child Welfare was aware of but had not participated in a Queen’s Bench trial in which it was determined that it was appropriate for a father to have unsupervised access to his children. The Director then immediately commenced proceedings for guardianship and to exclude the father from access.

The proceedings brought by the Director were struck as an abuse of process. The Court of Appeal observed at para 10: This issue may or may not be res judicata the Provincial Court of Alberta, but the new proceeding is, having regard to its history, an abuse of process. Having first decided to let the Queen's Bench of Alberta decide this issue, the director then took a new proceeding.

Even though it was not done in any contemptuous way, that decision is, in our view, to expose the Provincial Court of Alberta to applications which amount to nothing more than appeals of Queen's Bench orders. [ 17 ] In ESA Holdings Ltd. v Shea Nerland Canlan LLP , 2007 ABQB 78 , the plaintiff ESA had lost at trial in earlier litigation against Caleron, and then lost again on appeal. When costs of that appeal were sought against ESA the plaintiff argued that the principal of Caleron had provided false testimony at trial.

The Court of Appeal rejected that argument and awarded costs against ESA. [ 18 ] ESA then sued the lawyers for Caleron, asserting that those lawyers should have prevented that false testimony by Caleron. The action was struck under the predecessor to Rule 3.68 as an abuse of process, and the Court observed at paras 39-40: In

summary I am satisfied from a review of the record and the evidence presented in this case that the allegations made in this action against the Defendant Solicitors are either identical to or in substance the same allegations that were either made (and dismissed), or attempted to be made (and dismissed) against Caleron (Slater) on two occasions in the Court of Appeal and in the Supreme Court of Canada in the Caleron Action.

The fact that it is now the Defendant Solicitors against whom the allegations are made (as opposed to Caleron or Slater) does not make this action any less an abuse of process, as the allegations in the Caleron Action by implication included the Defendant Solicitors.

In any event the Defendant Solicitors are privies of Caleron (Slater) and res judicata arises where a party attempts to raise the same issues that have been litigated and determined between the parties or their privies, and all appeals have been exhausted. 40 The Plaintiff's action is a blatant attempt to relitigate issues that have already been determined and as such is an abuse of process. [ 19 ] In 644036 Alberta Ltd. v Morbank Financial Inc. , 2014 ABQB 681 , the debtor (“644”) had lost its land due to foreclosure. A number of issues had been litigated in those proceedings.

After losing the land, 644 commenced proceedings for damages against the

lender, the party who had purchased the lands in the foreclosure proceedings and others.

The Court observed at paras 62-65: The 644 Action is based on a number of key allegations: 1. there was a conspiracy between Morbank, 140, and its principles, and this means the Land purchase by 140 was not by an arms-length third party; 2. the conspiracy was intended to sabotage purchase or retention of the Land by Grantmyre and his associates; 3. the intended effect of the conspiracy was to obtain the Land at an artificially reduced price to maximize the profit obtained by Morbank when it took control of and developed the Land.

Each of these claims has been previously considered and rejected in other court proceedings. The Jan. 16, 2009

summary judgment decision of Master Alberstat was made despite a variation of this allegation in the Murray affidavit. A more mature version of the alleged conspiracy and fraud was explicitly rejected by Justice Burrows in Morbank Financial Inc. v Field , as "absolutely ridiculous". Justice Watson subsequently in Morbank Financial Inc. v Field , at para 22 concluded that the Field bankruptcy litigation was in effect a collateral attack on at least one Queen's Bench decision.

This alone is grounds to conclude that the 644 Action is a vexatious proceeding. 644 is attempting to re-litigate issues that were already decided. I note that there is a particularly obnoxious aspect to this re-litigation in that 644 has advanced a claim against Gail Morgan after a court has ruled she is an uninvolved, innocent third party: Morbank Financial Inc. v Field : para 8.

These repeated attempts to re- argue an alleged conspiracy resemble the conduct of the vexatious litigant in Chutskoff Estate v Bonora who returned, again and again, to the same conspiratorial allegations of fraud in multiple proceedings. A collateral attack is an abuse of process: Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 at para 22 , [2003] 3 SCR 77.

This conclusion alone meets the criteria to strike this action under Rule 3.68(2)(d). 644 cannot prove the alleged wrongdoing and claim against the Defendants as the basis for its allegations has already been rejected. [ 20 ] The decisions cited above support the proposition that it is an abuse of process for a party to attempt to re-litigate, in subsequent litigation, issues that have already been adjudicated. Both the Provincial Court and the Court of Queen’s Bench have determined that the plaintiffs should not have custody of the children, and should have access only as allowed by the Director.

The plaintiffs participated in those proceedings and brought unsuccessful appeals through various levels of the court. The actions commenced by the plaintiffs are based on the premise that they have wrongfully been denied custody and access. As such, the actions are an abuse of process as being a collateral attack on the previous court orders, and I am striking both actions pursuant to Rule 3.68. [ 21 ] Costs may be spoken to. Heard on the 25 th day of November, 2015. Dated at the City of Calgary, Alberta thi s 2 nd day of February, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: DM and MM (the plaintiffs) Jo-Ann L.

Burgess Alberta Justice for the defendants