MacDonald v Bissky, 2016 ABQB 690

Court of Queen’s Bench of Alberta Citation: MacDonald v Bissky, 2016 ABQB 690 Date: 20161207 Docket: FL01 12939 Registry: Calgary Between: Stephanie Anna Bissky Applicant - and - John Joseph MacDonald Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice B. A.

Millar _______________________________________________________ [ 1 ] This endorsement arises out of a case management hearing held on November 29, 2016 in an extremely high-conflict family matter. [ 2 ] The last case management hearing in this matter was held on September 20, 2016. [ 3 ] The next case management hearing in this matter will be held on January 12, 2017. Background [ 4 ] The parties, Stephanie Anna Bissky (the “Mother”) and John Joseph MacDonald (the “Father”), began cohabitating in 2005/2006 and separated in 2008/2009. They were never married. [ 5 ] The Mother lives in Calgary.

The Father lives in Summerside, Prince Edward Island but works intermittently in northern Alberta. [ 6 ] The parties have one daughter, TSB (“TSB”). TSB lives with the Mother in Calgary. The Father has not seen TSB, who is now 8 years old, since 2009 when she was still an infant.

[ 7 ] The Father is self-represented. [ 8 ] The Mother was represented by Wise Scheible Barkauskas, with Tyler Fric as her appeal counsel and Cynthia Scheible as her regular (non-appeal) counsel, until the case management hearing on September 20, 2016. At that hearing, I granted Ms. Scheible’s application to withdraw as counsel even though this matter is scheduled to proceed to trial in March 2017.

I will say more about the trial later in this endorsement. [ 9 ] TSB is represented by Sallee Maxwell of the Family Law Office (Legal Aid). [ 10 ] This extremely high-conflict family matter involves several issues, including guardianship and parenting of TSB, child support, spousal support and division of matrimonial property. It was initially commenced by a civil Statement of Claim and a Claim under the Family Law Act , both of which the Mother filed in this Court in December 2008 and discontinued in January 2009.

The Mother subsequently filed a Claim under the Family Law Act in the Provincial Court in May 2011, which was followed by several more Claims under the Family Law Act filed by both the Mother and the Father in the Provincial Court between 2011 and 2014. Numerous appearances, including a 2-day trial in January 2014, ensued in the Provincial Court between 2011 and 2014, resulting in at least seventeen

(17) Orders. [ 11 ] In 2014, this matter was proceeding concurrently in the Provincial Court and in this Court as a result of two (2) appeals the Mother filed, one in February 2014 and one in May 2014. These appeals were heard and dismissed by Justice B.E.C. Romaine on November 19, 2014. [ 12 ] The final Provincial Court Order in this matter was an Order pronounced by Judge G.J. Burrell on December 3, 2014 transferring the matter to this Court. In February 2015, Chief Justice N.C.

Wittmann appointed me as the Case Management Justice on this matter and Susan Borsic-Drummond Q.C. as the Case Management Counsel on this matter. [ 13 ] Case Management Counsel met with the parties in June 2015 and August 2015 but was unable to assist them to reach a mutually agreeable resolution of any of their outstanding issues. [ 14 ] I had a case management hearing with the parties on September 29, 2015, at which time I set this matter down for a ten-day trial commencing on March 6, 2017.

I also directed Case Management Counsel to prepare a litigation plan, which when reviewed and approved by me, would be filed and form part of my Order. I approved the attached Order – Litigation Plan on April 21, 2016 (the “Litigation Plan”). On my direction, Case Management Counsel filed the Litigation Plan and sent it to the parties on April 22, 2016. [ 15 ] The Litigation Plan provides a detailed roadmap, including deadlines, for the parties to follow until the trial in March 2017.

The Litigation Plan was necessary because even after all of these years of ongoing litigation, the parties remain deeply enmeshed in conflict and have yet to address several of their outstanding issues. [ 16 ] On May 25, 2016, Mr. Fric, the Mother’s appeal counsel, wrote to Case Management Counsel requesting a case management hearing with me to hear an application for a stay of enforcement pending appeal of the Litigation Plan. Mr. Fric did not raise any concerns about the Litigation Plan nor did he request a hearing to revisit the Litigation Plan. [ 17 ] One week earlier on May 17, 2016, Ms.

Scheible, the Mother’s regular (non-appeal) counsel, had written to me requesting permission to bring an urgent application in Chambers to allow the Mother to travel with TSB because Ms. Scheible had been advised, presumably by my assistant or the Court’s Case Management Coordinator, that I would not be available until June 2, 2016. In her letter, Ms. Scheible did not raise any concerns about the Litigation Plan nor did she request a hearing to revisit the Litigation Plan. [ 18 ] On August 3, 2016, Ms.

Scheible wrote to Case Management Counsel, this time in response to a letter sent by the Father requesting that the parties divert from the Litigation Plan and conduct questioning by teleconference for financial reasons. Pursuant to para 14 of the Litigation Plan, all questioning was to be conducted in person in Calgary unless otherwise agreed in writing between the parties and Ms. Maxwell. In her August 3 rd letter, Ms. Scheible indicated that she was opposed to the Father’s request to divert from strict compliance with the Litigation Plan.

She also requested an appearance before me to bring an application to be removed as counsel for the Mother. [ 19 ] On August 24, 2016, on my direction, Case Management Counsel wrote to the parties advising them that a case management hearing with me would be held on September 20, 2016. [ 20 ] On September 9, 2016, Mr. Fric, the Mother’s appeal counsel, wrote to me advising that he had appeared in the Court of Appeal on June 15, 2016 regarding the Mother’s appeal of the Litigation Plan. In this letter, Mr. Fric stated: At that hearing the Honourable Mr. Justice P.T. Costigan directed Ms.

Maxwell and I to write a joint letter to you requesting a hearing regarding the Order-Litigation Plan in order to have you hear the issues that were in dispute in the above-mentioned Orders before we would be allowed to proceed with our appeal. I am not retained to do so at this time and I understand that Ms. Bissky will self-represent in future case management meetings. [ 21 ] The Mother’s appeal of the Litigation Plan was not raised with me again until the November 29, 2016 case management hearing as set out below.

The November 29, 2016 Case Management Hearing [ 22 ] On my direction, Case Management Counsel wrote to the parties on November 8, 2016 advising them that a case management hearing would be held with me on November 29, 2016 to deal with two (2) issues, namely:

1. communication with the Court; and 2. the third Order pronounced at the September 20, 2016 case management hearing. [ 23 ] On my direction, Case Management Counsel advised the parties that they could not file any fresh applications for the case management hearing on November 29, 2016 but that they could, if they wished, file affidavits. [ 24 ] At the November 29, 2016 case management hearing, David Wright appeared on behalf of the Mother and advised the Court that the Mother had retained him in the late afternoon on November 28. Mr.

Wright also advised the Court that he would not be available for the first week of the scheduled ten-day trial in March 2017. I declined to adjourn the trial, which had been scheduled fourteen (14) months before on September 29, 2015. I note that when I granted Ms. Scheible’s application to withdraw as counsel for the Mother on September 20, 2016, I directed that the trial would remain peremptory on both parties notwithstanding Ms. Scheible’s withdrawal.

I find that an adjournment of the trial, particularly given TSB’s age and the fact that the Father has not seen her since 2009, would lead to irreparable harm because the next available date for a ten-day trial is not until September 2019. TSB will be 11 ½ years old by then.

Issue 1: Communication with the Court [ 25 ] Correspondence with the Court was included as an issue on the agenda for the November 29, 2016 case management hearing in order to address the unacceptable manner in which the parties, and particularly the Mother, were communicating with the Court as I will now describe. [ 26 ] Case Management Counsel received a flurry of letters from the parties immediately following the case management hearing on September 20, 2016.

On October 7, 2016, on my direction, Case Management Counsel wrote to the parties as follows: I am Case Management Counsel at the Court of Queen’s Bench in Calgary. I acknowledge receipt of the following letters since your last case management hearing with Justice B.A. Millar on September 20, 2016:

(1) Letter from Ms. Maxwell dated September 21, 2016 (6 ps);

(2) Letter from Ms. Bissky dated September 21, 2016 (13 ps);

(3) Letter from Ms. Bissky dated September 22, 2016 (10 ps);

(4) Letter from Ms. Bissky dated September 23, 2016 (3 ps);

(5) Letter from Mr. MacDonald dated September 23, 2016 (2 ps);

(6) Letter from Ms. Maxwell dated September 23, 2016 (3 ps);

(7) Letter from Ms. Bissky dated September 26, 2016 (11 ps);

(8) Letter from Ms. Bissky dated September 26, 2016 (55 ps);

(9) Letter from Ms. Maxwell dated October 3, 2016 (9 ps);

(10) Letter from Ms. Bissky dated October 3, 2016 (10 ps);

(11) Letter from Ms. Bissky dated October 6, 2016 (13 ps); and

(12) Letter from Ms. Bissky dated October 7, 2016 (2 ps). My office handles a high volume of inquiries regarding Court files on a daily basis. As set out above, on this matter alone I have received twelve (12) separate letters totaling 137 ps over the course of thirteen (13) business days. This amounts to more than ten (10) ps of correspondence per day on this matter alone. Due to a lack of administrative assistance, I am unable to consider and respond to all of the inquiries I receive as quickly as I would like. Please be assured that I will respond to your letters as soon as I am able.

In the meantime, there is no need for you to send me any more letters. In fact, sending me more letters may only delay my response time further because it is my intention to seek directions from Justice Millar regarding all of your letters at one time and then send you a single response setting out those directions. [ 27 ] On October 7, 2016, Ms. Maxwell sent a further letter to Case Management Counsel, which she copied to the Mother and the Father. In this letter, Ms.

Maxwell advised that until she received Case Management Counsel’s October 7 letter, she had not been aware that the Mother had been communicating with the Court because the Mother had not copied her on any of her letters to Case Management Counsel. I note that the Mother had indicated on the face of all of her letters to Case Management Counsel that she had copied both Ms. Maxwell and the Father. [ 28 ] On October 13, 2016, the Mother sent a further letter to Case Management Counsel responding to Ms. Maxwell’s October 7 letter. In this letter, the Mother advised that she sent copies of her letters to Ms.

Maxwell by mail due to the volume of letters and because her scanner would “only permit one document per email.” I note that the Mother had sent all of her letters to Case Management Counsel by facsimile transmission. I further note that Ms. Maxwell’s facsimile transmission number is clearly set out with the rest of her contact information at the top of all of her letters to Case Management Counsel. [ 29 ] At the November 29, 2016 case management hearing, Ms.

Maxwell advised the Court that she did not receive copies of the Mother’s letters to Case Management Counsel until approximately one (1) month later in early November when she received all of the

letters from the Mother in a single bundle. [ 30 ] As stated above, on November 8, 2016, Case Management Counsel wrote to the parties advising them of the November 29 case management hearing. In this letter, Case Management Counsel again made reference to the flurry of letters she had received from the parties and stated: As you have been previously advised, Court process requires that outstanding issues between parties be dealt with by way of attendance not by way of correspondence.

The amount of correspondence I have received from you on this matter is therefore entirely inappropriate. [ 31 ] In addition to the unacceptable number of letters the parties, and particularly the Mother, was sending to the Court and the fact that the Mother was not copying her letters to Ms. Maxwell, there was also another communication problem that had to be addressed at the November 29, 2016 case management hearing.

This problem related to the Mother’s email communication to the Court. [ 32 ] Case Management Counsel sends the parties a complimentary email copy of all correspondence that she sends to them on my behalf by regular mail. This is done for the convenience of the parties because email ensures that they receive my directions as quickly as possible. Case Management Counsel sends emails to the parties through an email address called CMC.Assistant@albertacourts.ca and includes the following message on all emails: THIS E-MAIL ADDRESS IS NOT MONITORED REGULARLY.

DO NOT RESPOND TO THIS E-MAIL ADDRESS UNLESS CASE MANAGEMENT COUNSEL HAS EXPRESSLY DIRECTED YOU TO SEND AN E-MAIL MESSAGE TO THIS E- MAIL ADDRESS. Court process requires that outstanding issues between parties be dealt with by way of attendance not by way of correspondence or telephone calls. If issues arise between Court appearances, please make note of them and raise them at your next scheduled Court appearance.

In the unlikely event that an urgent issue should arise between your Court appearances, you may send urgent correspondence to Case Management Counsel by regular postal mail or courier to the following address: Calgary Courts Centre, Suite 2401-N, 601 – 5 Street SW, Calgary, Alberta, T2P 5P7. Urgent correspondence of not more than ten ps may also be sent by facsimile transmission to 403-355- 2405. All urgent correspondence sent to Case Management Counsel must, without exception, be copied to the opposing party and must indicate such on its face.

Correspondence is not to be sent directly to your Case Management Justice. This Office handles a high volume of inquiries regarding Court files on a daily basis. In order to manage these inquiries, all parties and counsel are required to comply with these directions. Any failure to comply with these directions will be brought to the attention of your Case Management Justice. No correspondence will be read or considered unless it is sent in accordance with these directions.

Thank you. [Emphasis in original.] [ 33 ] Despite these clear directions on every email from Case Management Counsel, the Mother sent Case Management Counsel two unsolicited emails: one on October 11, 2016 and one on November 14, 2016. The Mother did not copy the Father or Ms. Maxwell on either of these emails. [ 34 ] On November 15, Case Management Counsel sent the Mother an email, copying the Father and Ms. Maxwell, stating: Ms. Bissky, You have previously been advised not to send email messages to this address unless specifically authorized by the Court's Case Management Counsel, Susan Borsic-Drummond QC.

Your email below was not authorized. Your email address has now been blocked so this email address will no longer receive emails from you. All further correspondence from Ms. Borsic-Drummond will be sent to you by regular mail only. Thank you. [ 35 ] In the two

(2) Affidavits she filed for the November 29, 2016 case management hearing (sworn on November 15, 2016 and November 22, 2016), the Mother stated that she was not prepared to address the issue of communication with the Court until she retained new legal counsel. As explained above, the Mother retained new legal counsel the day before the November 29, 2016 case management hearing. At that hearing, I advised both parties that they must comply with the Court’s communication policies whether or not they have legal counsel.

These communication policies are necessary because the Court does not have the resources to review and respond to endless correspondence from parties. Moreover, it is not the role or function of the Court to engage in ongoing dialogue with parties through correspondence and most especially not when that correspondence is sent to the Court without being copied to the other parties. Issue 2: Third Order Pronounced at the September 20, 2016 Case Management Hearing [ 36 ] I pronounced three

(3) Orders at the September 20, 2016 case management hearing. The first Order granted Ms. Scheible’s request to withdraw as counsel for the Mother and made certain amendments to the Litigation Plan such as extending the deadlines for financial disclosure set out therein. The second Order appointed Ms. Maxwell as amicus curiae . On my direction, Case Management Counsel prepared both of these Orders. Case Management Counsel filed the Orders on November 4, 2016 and sent them to the parties on November 8, 2016.

[ 37 ] The third Order I pronounced on September 20, 2016 appointed Dr. Susan Clark as a parenting expert to prepare a Voice of the Child Report and directed that the Father pay all of Dr. Clark’s fees in the first instance. [ 38 ] On October 3, 2016, Ms. Maxwell sent Case Management Counsel a draft of the Order appointing Dr. Clark. In a letter also dated October 3, 2016, the Mother took issue with the draft Order prepared by Ms. Maxwell. I have reviewed the draft Order prepared by Ms.

Maxwell and note that it is based on the template Order included with Family Law Practice Note 7, which is commonly used by the Court in cases involving the appointment of experts in family matters. At the November 29, 2016 case management hearing, counsel for the Mother also indicated that only one (1) para of the draft Order prepared by Ms. Maxwell was outside of the Practice Note 7 template Order. [ 39 ] In her many letters to Case Management Counsel following the September 20, 2016 case management hearing, the Mother repeatedly made and withdrew allegations that Dr.

Clark should not be appointed as a parenting expert in this matter because she has a conflict of interest. This same inconsistency appears in the Affidavits the Mother filed for the November 29, 2016 case management hearing. To this end, in her Affidavit sworn November 15, 2015, the Mother states that she is “not able to sign a conflict of interests agreement with Dr. Susan Clark because emails between Sallee Maxwell and John Joseph MacDonald in regards to Dr.

Clark and all matters involving this case have not been disclosed.” In contrast, in her Affidavit sworn one (1) week later on November 22, 2016, the Mother states that she has “signed a release with Dr. Susan Clark for conflicts of interest.” [ 40 ] In her letter dated November 8, 2016, Case Management Counsel advised the parties that “this conflict issue will be addressed at the case management hearing on November 29, 2016. The Order appointing Dr.

Clark as a parenting expert in this matter will therefore not be finalized until after November 29, 2016.” [ 41 ] At the November 29, 2016 case management hearing, counsel for the Mother confirmed that the Mother had signed a release with Dr. Clark but advised that she still has concerns that Dr. Clark may have a conflict of interest. I therefore rescinded my Order appointing Dr. Clark as a parenting expert in this matter. [ 42 ] In her Affidavit sworn November 22, 2016, the Mother proposed that Dr. Pat Petrie prepare a Voice of the Child Report instead of Dr. Clark.

In an email dated November 15, 2016, which is attached as an Exhibit to the Mother’s Affidavit sworn November 22, 2016, Dr. Petrie estimates that she would be able to complete a Voice of the Child Report by February 1, 2017. I note that paras 18 and 19 of the Litigation Plan state: 18. All expert reports, if any, shall be served on both parties and Counsel for TSB by no later than 4:00 p.m. on Friday, December 2, 2016. 19.

All responding expert reports, if any, shall be served on both parties and Counsel for TSB by no later than 4:00 p.m. on Friday, January 13, 2017. [ 43 ] While I would consider a reasonable request for an extension of these Litigation Plan deadlines for expert reports, granting Dr. Petrie a two-month extension from December 2, 2016 until February 1, 2017 would not allow adequate time for responding expert reports to be prepared in advance of the trial on March 6, 2017.

As stated above, I find that an adjournment of the trial, particularly given TSB’s age and the fact that the Father has not seen her since 2009, would lead to irreparable harm because the next available date for a ten-day trial is not until September 2019. TSB will be 11 ½ years old by then. I therefore declined to grant a fresh Order appointing Dr. Petrie as a parenting expert to prepare a Voice of the Child Report. Other Issues: Removal of Ms. Maxwell as Counsel for TSB [ 44 ] The Mother has been opposed to Ms. Maxwell’s involvement in this matter for several years and continues to request that Ms.

Maxwell be removed as counsel for TSB. At the November 29, 2016 case management hearing, I advised counsel for the Mother that I would not hear another application to remove Ms. Maxwell. [ 45 ] Case Management Counsel set out some of the background of this issue in her November 8, 2016 letter to the parties as follows: In her correspondence to me since the last case management hearing on September 20, Ms. Bissky states repeatedly that she is opposed to Ms. Maxwell’s involvement in this matter and that she wishes to file another application to remove Ms. Maxwell. You will recall that Ms.

Bissky appealed the Provincial Court Order appointing Ms. Maxwell, namely the Order Appointing Lawyer pronounced by Judge G.J. Burrell on April 15, 2014 and amended on April 25, 2014. This appeal was dismissed in an Order pronounced by Justice B.E.C. Romaine on November 19, 2014. More recently, Ms. Bissky filed a case management application on September 1, 2016 seeking to remove and replace Ms. Maxwell. This application was heard and dismissed by Justice Millar on September 20, 2016. Only one day after this application was heard, Ms.

Bissky wrote to me advising that she wishes to file another application to remove Ms. Maxwell based on “new information.” Ms. Bissky made reference to a complaint she made against Ms. Maxwell to the Law Society of Alberta. In a subsequent letter dated September 26, 2016, Ms. Bissky sent me a copy of a Law Society complaint she made against Ms. Maxwell dated November 19, 2014 and a document entitled “Complaint letter for Sallee Maxwell of Family Law Office” dated November 19, 2015. Under these circumstances, Justice Millar will not hear another application from Ms. Bissky to remove Ms.

Maxwell. [ 46 ] I think that it would be useful to elaborate further on the history of this issue. [ 47 ] Judge G.J. Burrell of the Provincial Court originally appointed counsel for TSB through Legal Aid in an Order pronounced on April 15, 2014 and amended on April 25, 2014 (the “Provincial Court Children’s Counsel Order”). In the Provincial Court Children’s Counsel Order, Judge Burrell directed the Mother to apply to Legal Aid for counsel for TSB. Judge Burrell specifically noted that this is a high-conflict case and recommended the appointment of senior counsel for TSB. The result was the appointment of Ms.

Maxwell as counsel for TSB.

[ 48 ] It appears that the Mother was resistant to Ms. Maxwell’s appointment from the outset because in an Order pronounced on May 30, 2014, Judge Burrell directed the Mother to provide Ms. Maxwell with the name and address of TSB’s school so that Ms. Maxwell could meet with TSB at school. On this point, I note that at the case management hearing on November 29, 2016, Ms.

Maxwell advised the Court that she does not know what school TSB currently attends. [ 49 ] In the second Order pronounced on May 30, 2014, Judge Burrell noted that the Mother had appealed the Provincial Court Children’s Counsel Order to this Court. He also noted that this is an extreme high conflict case. Stating that “time is of the essence for the child” pending the Mother’s appeal of the Provincial Court Children’s Counsel Order and noting that the Father was in favour of Ms.

Maxwell’s appointment, Judge Burrell took the unusual step of directing the Father to apply to Legal Aid for counsel for TSB despite the Mother’s appeal. Judge Burrell also specifically recommended that Legal Aid appoint the same counsel who had been appointed under the Provincial Court Children’s Counsel Order, namely Ms. Maxwell. [ 50 ] In an Order pronounced on August 5, 2014, Judge Burrell directed that the Mother bring TSB to Ms. Maxwell’s office for a meeting.

Judge Burrell further directed that “[c]hildren’s counsel shall have leave to file an application for contempt if the Mother fails to bring the Child for her scheduled appointment.” [ 51 ] On November 19, 2014, Justice B.E.C. Romaine dismissed the Mother’s appeal of the Provincial Court Children’s Counsel Order. [ 52 ] Despite the fact that her appeal of the Provincial Court Children’s Counsel Order had been dismissed, the Mother filed a case management application on September 1, 2016 seeking to remove and replace Ms. Maxwell.

I heard and dismissed this application at the September 20, 2016 case management hearing. One day later, on September 21, 2016, the Mother wrote to Case Management Counsel indicating that she wanted me to hear another application to remove Ms. Maxwell. In fact, in her many letters to Case Management Counsel since the September 20, 2016 case management hearing, the Mother repeatedly states that she wants me to hear another application to remove Ms. Maxwell. In support of this request, the Mother sent Case Management Counsel a complete copy of a complaint to the Law Society of Alberta that she filed against Ms.

Maxwell dated November 19, 2014 and a document entitled “Complaint letter for Sallee Maxwell of Family Law Office” dated November 19, 2015. [ 53 ] I should deal with one other point raised by the Mother regarding this issue. In a letter to Case Management Counsel dated October 6, 2016, the Mother states: I am vehemently opposed to Maxwell being in the role of Amicus Curae [sic]. Exhibit 1 is your letter to us dated August 24th that states clearly that her appointment is not part of the [September 20] case management meeting.

Blind-siding me and not allowing me to seek counsel was unjust and I will be forced to appeal her appointment. I have given you substantial evidence by way of the law society complaint and this fax to warrant her dismissal. [ 54 ] In response to this assertion, I note that, as stated above, I pronounced three

(3) Orders at the September 20, 2016 case management hearing, one of which appointed Ms. Maxwell as amicus curiae . The Mother is correct that the issue of counsel for TSB was not on the original agenda for the September 20, 2016 case management hearing.

However, in her application filed for the September 20, 2016 case management hearing, the Mother requested the following relief: An order that new counsel be appointed for the child of the relationship effective immediately [ 55 ] Accordingly, it was the Mother herself who raised the issue of counsel for TSB in her application for the September 20, 2016 case management hearing. I agreed to hear this application on September 20 despite the fact that it was not included on the original agenda for this case management hearing. The result was an Order dismissing the Mother’s application that Ms.

Maxwell be removed and replaced as counsel for TSB and a fresh Order appointing Ms. Maxwell as amicus curiae . [ 56 ] Based on this history of the issue, I advised counsel for the Mother at the November 29, 2016 case management hearing, that I would not hear another application to remove Ms. Maxwell. Other Issues: Ms. Maxwell’s Request to Bring an Application [ 57 ] As stated above, in her letter dated November 8, 2016, Case Management Counsel advised the parties that no fresh applications could be filed for the November 29, 2016 case management hearing. Despite this direction, on November 15, 2016, Ms.

Maxwell filed an application for an Order subpoenaing case workers from Child and Family Services in Alberta and Prince Edward Island for the trial on March 6, 2017. Ms. Maxwell’s desire to have this application heard promptly no doubt stems from the fact that this Order is a procedural requirement mandated by

section 34 of the Alberta Evidence Act , R.S.A. 2000, c. A-18. [ 58 ] Counsel for the Alberta Director of Child and Family Services attended the November 29, 2016 case management hearing and advised the Court that she consented to Ms. Maxwell’s application. Ms. Maxwell advised that Counsel for the Prince Edward Island Director of Child and Family Services also consented to her application. However, in her affidavit sworn November 22, 2016, the Mother objected to Ms. Maxwell’s application being heard on November 29, 2016.

Counsel for the Mother reiterated this objection at the November 29, 2016 case management hearing. [ 59 ] On the basis of the Mother’s objection and because para 21 of the Litigation Plan directs that witness lists need not be delivered until January 27, 2017, I declined to hear Ms. Maxwell’s application at the November 29, 2016 case management hearing and scheduled a further case management hearing on January 12, 2017, at which time the application will be heard. [ 60 ] If the Mother or the Father wish to file and serve an Affidavit in response to Ms.

Maxwell’s application, they must do so by no later than noon on Friday, December 23, 2016 . The Mother and the Father may each file and serve no more than one (1) responding Affidavit. Ms. Maxwell may file and serve no more than one (1) reply Affidavit by no later than noon on Friday, January 6, 2017 . All Affidavits may be no longer than five (5) ps in length (excluding exhibits) and exhibits may total no more than 20 ps.

Other Issues: Disclosure [ 61 ] At the November 29, 2016 case management hearing, both Ms. Maxwell and counsel for the Mother raised the issue of disclosure in advance of the trial on March 6, 2017. Ms. Maxwell referred the Court to a letter she sent to Case Management Counsel on September 21, 2016, in which she set out certain disclosure that is still outstanding. Counsel for the Mother requested that the Court direct written interrogatories before the trial on March 6, 2017. (

a) Financial Disclosure [ 62 ] The exchange of financial disclosure in this matter has been another ongoing problem. I note that on January 30, 2014 after a two-day trial, Judge G.J. Burrell of the Provincial Court pronounced an Order which, among other things, suspended all future

section 7 expenses until the Mother provided certain specified financial disclosure and required that any application in respect of retroactive

section 3 child support be accompanied by financial disclosure from both parties, including specified financial disclosure from the Mother. The Mother appealed this Order to this Court, which appeal was heard and dismissed by Justice B.E.C. Romaine on November 19, 2014. [ 63 ] Paras 9 to 12 of the Litigation Plan deal with financial disclosure. These paras restrict the Mother from raising certain financial issues at the trial on March 6, 2017 if she fails to provide the financial disclosure specified by Judge Burrell by no later than June 3, 2016.

These paras of the Litigation Plan were revisited at the case management hearing on September 20, 2016. At that time, I directed that paras 9 to 12 of the Litigation Plan be deleted and replaced with new provisions which, among other things, extend the deadline from June 3, 2016 until November 30, 2016. As of the November 29, 2016 case management hearing, it was therefore not yet known if the specified financial disclosure would be provided by the new deadline. [ 64 ] Given this background, I will not hear any further applications for outstanding financial disclosure in advance of the trial on March 6, 2017.

If the financial disclosure is not provided by the November 30, 2016 deadline, then the restrictions set out in the provisions replacing paras 9 to 12 of the Litigation Plan will apply. (

b) Questioning [ 65 ] Paras 13 to 17 of the Litigation Plan deal with questioning and undertakings. Pursuant to para 13, the deadline questioning was August 26, 2016. Pursuant to para 14, all questioning was to be conducted in person in Calgary unless otherwise agreed in writing between the parties and Ms. Maxwell. [ 66 ] The Father wrote to Case Management Counsel on August 3, 2016 requesting that the parties divert from the Litigation Plan and conduct questioning by teleconference for financial reasons. Also on August 3, 2016, Ms.

Scheible wrote to Case Management Counsel indicating that she was opposed to the Father’s request to divert from strict compliance with the Litigation Plan. On my direction, Case Management Counsel wrote to the parties on August 24, 2016 granting the Father permission to bring an application to conduct questioning by teleconference to be heard at the September 20, 2016 case management hearing. However, no application regarding questioning was ever filed.

Accordingly, on September 20, 2016, I directed that, in accordance with para 13 of the Litigation Plan, there would be no questioning before the trial because the August 26, 2016 deadline had passed. [ 67 ] Given this background, I will not hear any further applications to conduct questioning in advance of the trial on March 6, 2017. (

c) Other Non-Financial Disclosure [ 68 ] The parties are to immediately discuss disclosure and attempt to resolve any outstanding disclosure issues between themselves. If any non-financial disclosure issues remain outstanding, I will deal with these issues at the next case management hearing on January 12, 2017.

On that date, I will also determine the order in which issues will be heard at the trial on March 6, 2017 because this will allow all parties to better advise their witnesses of when during the ten-day trial they are likely to be required to give evidence. [ 69 ] Each party may file and serve no more than one (1) application and no more than one (1) supporting Affidavit dealing with non-financial disclosure and the order in which issues will be heard at the trial by no later than noon on Friday, December 16, 2016 .

Each respondent may file and serve no more than one (1) responding Affidavit by no later than noon on Friday, December 23, 2016 . Each applicant may file and serve no more than one (1) reply Affidavit by no later than noon on Friday, January 6, 2017 . All Affidavits may be no longer than five (5) ps in length (excluding Exhibits) and Exhibits may total no more than 20 ps. The Mother’s Appeal of the Litigation Plan [ 70 ] At the November 29, 2016 case management hearing, Ms.

Maxwell advised the Court that the Mother has revived her appeal of the Litigation Plan, which had been adjourned sine die by the Court of Appeal. According to Ms. Maxwell, the Mother had until November 24, 2016 to revive this appeal, which she did sometime during the week before the November 29, 2016 case management hearing without notice to Ms. Maxwell. The Court of Appeal has advised Ms. Maxwell that the Mother’s appeal must be heard by January 27, 2017.

Neither counsel for the Mother or the Mother herself spoke to the issue of the Mother’s appeal of the Litigation Plan at the November 29, 2016 case management hearing. With the exception of the issues dealt with in this Endorsement, they did not raise any concerns about the Litigation Plan.

Heard on the 29 th day of November, 2016. Dated at the City of Calgary, Alberta this 7 th day of December, 2016. B.A. Millar J.C.Q.B.A. Appearances: Mr. David Wright for the Applicant Mr. John Joseph MacDonald on his own behalf Ms. Sallee Maxwell for the Child, TSB Ms. Kim Berlin for the Director of Alberta Child and Family Services COURT FILE NUMBER FL01 12939 COURT Court of Queen's Bench of Alberta JUDICIAL CENTRE Calgary APPLICANT JOHN JOSEPH MACDONALD RESPONDENT STEPHANIE ANNA BISSKY DOCUMENT ORDER – Litigation Plan DOCUMENT PREPARED Case Management Counsel BY

DATE ON WHICH LITIGATION PLAN WAS APROVED: April 21, 2016 NAME OF JUDGE WHO APPROVED THIS LITIGATION PLAN: Justice B.A. Millar UPON noting that this matter is under the case management of Justice B.A. Millar and in the Case Management Counsel Project with Susan Borsic-Drummond Q.C.; AND UPON noting that this Litigation Plan forms part of the Order pronounced by Justice B.A.

Millar on September 29, 2015, which Order was filed on October 29, 2015 (the "September 29, 2015 Order''); AND UPON noting that John Joseph MacDonald (the "Father'') lives in Summerside, Prince Edward Island and is self-represented; AND UPON noting that Stephanie Anna Bissky (the "Mother'') lives in Calgary and is represented by Cynthia L.A. Scheible; AND UPON noting that there is one child of the parties' relationship, namely: T irzah S hiloh B issky , born March 28, 2008 (“T SB ”) AND UPON noting that T irzah resides with the Mother in Calgary; AND UPON noting that T irzah is represented by Sallee G.

Maxwell pursuant to the Order Appointing Lawyer pronounced by Judge G.J. Burrell on April 15, 2014 and amended on April 25, 2014 (the "April 15, 2014 Order''); AND UPON noting that the Mother appealed the April 15, 2014 Order to this Court; AND UPON noting the Order pronounced by Justice B.E.C. Romaine on November 19, 2014, which dismissed the Mother's appeal of the April 15, 2014 Order; AND UPON noting the Interim Child Support Order pronounced after a two-day trial by Judge G.J. Burrell on January 30, 2014 (the "January 30, 2014 Order''), which, among other things: (

A) set the Mother's 2014 Guideline Income at $144,664.00 for the purpose of

section 3 child support only; (

B) set the Father's 2013 Guideline Income at $69,293.00; (

C) confirms that the Mother withdrew her claim for retroactive

section 7 expenses from the Father for the years 2008 to 2013 inclusive; (

D) suspends all future

section 7 expenses until the Mother provides certain specified financial disclosure; and

(

E) requires that any application in respect of retroactive

section 3 child support must be accompanied by financial disclosure from both parties, including specified financial disclosure from the Mother; AND UPON noting that the Mother appealed the January 30, 2014 Order to this Court; AND UPON noting the Order pronounced by Justice B.E.C. Romaine on November 19, 2014, which dismissed the Mother's appeal of the January 30, 2014 Order but permitted the Mother to make a spousal support application in this Court (the "November 19, 2014 Appeal Order''); AND UPON noting the Order pronounced by Judge G.J.

Burrell on December 3, 2014, which transferred the parties' file in the Provincial Court to this Court; AND UPON noting that the parties' file in the Provincial Court has been transferred and is now a file of this Court; IT IS HEREBY ORDERED THAT: The Trial 1. In accordance with the September 29, 2015 Order, the parties shall comply with this Litigation Plan in preparation for the ten-day trial, which is scheduled to proceed in this matter commencing at 10:00 a.m. on Monday, March 6, 2017 (the "Trial") and which shall deal with the following issues: (

A) guardianship; (

B) parenting; (

C) child support; (

D) spousal support; (

E) division of property and debt; and (

F) recovery of outstanding costs award(s) (if any). 2. The Trial shall be peremptory on both parties. 3. The requirement of filing Form 39 under Rule 8.7 of the Alberta Rules of Court is waived. 4. The parties are exempted from the requirement of attending before a Dispute Resolution Officer before the Trial.

Attendance by the Father 5. The Father shall attend the Trial in person. With the exception of the Trial, the Father may attend all future Court appearances by teleconference unless otherwise directed by the Court. Counsel for T irzah 6.

Counsel for T irzah is authorized to participate in these proceedings, including the Trial, as any other counsel involved in the proceedings and shall be treated by the parties as would any other party, including but not limited to notice of all proceedings, receipt of all reports, records and correspondence, leave to appear and participate in all proceedings with full right to examine, cross-examine, call evidence and make submissions to the Court, seek costs and take any other steps as Counsel for T irzah deems appropriate. 7.

Counsel for T irzah is authorized to make application to the Court, including but not limited to seeking further direction and seeking relief on behalf of T irzah as Counsel for T irzah .deems appropriate and necessary, in which case T irzah may be named as an Applicant and both parties may be named as Respondents if deemed appropriate by Counsel for T irzah . 8. Counsel for T irzah shall be entitled, at her sole discretion, to provide a

summary to this Court, orally or in writing, of the information acquired in the course of performing her duties and by doing so Counsel for T irzah shall not be deemed to be a witness in these proceedings. Disclosure 9. The parties shall provide one another with all outstanding financial disclosure by no later than 4:00 p.m. on Friday, June 3, 2016. 10. If the Mother does not provide the Father with the specified financial disclosure set out in paragraph 3 of the January 30, 2014 Order by 4:00 p.m. on Friday, June 3, 2016, then she shall not be entitled to seek

section 7 expenses from the Father at the Trial and she shall not be entitled to file any claims or applications seeking

section 7 expenses from the Father until the Justice who hears the Trial releases his or her written decision and only then with leave of the Justice who hears the Trial. 11. If the Mother does not provide the Father with the specified financial disclosure set out in paragraph 5 of the January 30, 2014 Order by 4:00 p.m. on Friday, June 3, 2016 , then she shall not be entitled to seek

section 3 child support from the Father at the Trial and she shall not be entitled to file any claims or applications seeking

section 3 child support from the Father until the Justice who hears the Trial releases his or her written decision and only then with leave of the Justice who hears the Trial. 12. In the event that the Mother intends to seek spousal support against the Father as permitted in the November 19, 2014 Appeal Order, she shall notify the Father and Counsel for T irzah in writing by no later than 4:00 p.m. on Friday, June 3, 2016 .

If the Mother does not notify the Father and Counsel for T irzah by 4:00 p.m. on Friday, June 3, 2016, then she shall not be entitled to seek spousal support from the Father at the Trial and she shall not be entitled to file any claims or applications seeking spousal support from the Father until the Justice who hears the Trial releases his or her written decision and only then with leave of the Justice who hears the Trial. Questioning and Undertakings 13. If there is to be any questioning before the Trial, it must be completed by no later than Friday, August 26, 2016 . 14.

Subject to paragraph 17 of this Litigation Plan, all questioning shall be conducted in person in Calgary, Alberta, unless otherwise agreed in writing between the parties and Counsel for T irzah .

15. If either party or Counsel for T irzah wishes to conduct questioning, they must serve a Notice of Appointment for Questioning (Form 29) no less than thirty (30) days before the appointment date. 16. All undertakings shall be completed by no later than Friday, September 30, 2016 . 17. Any further questioning on the undertakings shall be completed by no later than Friday, November 4, 2016 and shall be conducted by written questions in accordance with the Alberta Rules of Court unless otherwise directed by the Court. Expert Reports 18.

All expert reports, if any, shall be served on both parties and Counsel for T irzah by no later than 4:00 p.m. on Friday, December 2, 2016 . 19. All responding expert reports, if any, shall be served on both parties and Counsel for T irzah by no later than 4:00 p.m. on Friday, January 13, 2017 . Brief Statements on the Issues 20. By no later than 4:00 p.m. on Friday, January 27, 2017 : (

A) The parties shall provide one another and Counsel for T irzah with brief statements (no longer than fifteen (15) pages in length) setting out their positions on: (

i) the issues listed in subparagraphs 1(A), 1(8), 1(

E) and 1(

F) of the September 29, 2015 Order; and (ii) the issues listed in subparagraphs 1(

C) and 1(

D) of the September 29, 2015 Order if these issues are to be determined at the Trial. Each statement shall attach a

schedule identifying all of the matrimonial property they say is at issue, who currently owns each asset, the value they say each asset has and how they say the assets should be divided. (

B) Counsel for T irzah shall provide the parties with a brief statement (no longer than five (5) pages in length) setting out her position on the issues listed in subparagraphs 1(

A) and 1(

B) of the September 29, 2015 Order. Witness Lists 21. By no later than 4:00 p.m. on Friday, January 27, 2017 , the parties and Counsel for T irzah shall advise each other in writing of all witnesses they intend to call at the Trial, including both lay and expert witnesses, and provide a brief

summary of the subject matter of each witness's evidence. Each witness

summary shall be no more than two (2) pages in length. Agreed Statement of Facts and Book of Agreed Exhibits 22. Counsel for the Respondent shall prepare a proposed Agreed Statement of Facts and a proposed Book of Agreed Exhibits and provide them to the Applicant and Counsel for T irzah for comment by no later than 4:00 p.m. on Friday, January 27, 2017 . The proposed Book of Agreed Exhibits shall contain an index and set out each document at a separate tab. 23. The Applicant and Counsel for T irzah shall respond in writing to Counsel for the Respondent about the proposed Agreed Statement of Facts and proposed Book of Agreed Exhibits by no later than 4:00 p.m. on Friday, February 3, 2017 .

24. By no later than 4:00 p.m. on Friday, February 17, 2017 , Counsel for the Respondent shall file and serve the Applicant and Counsel for T irzah with an Agreed Statement of Facts and a Book of Agreed Exhibits. The Book of Agreed Exhibits shall contain an index and set out each document at a separate tab. 25. By no later than 4:00 p.m. on Friday, February 24, 2017 , the parties and Counsel for T irzah shall each file and serve a binder containing all documents that they intend to rely on at the Trial which are not contained in the Book of Agreed Exhibits.

All binders shall contain an index and set out each document at a separate tab. Applications 26. In the event that either party or Counsel for T irzah wishes to bring an application prior to the Trial, they shall send a letter to Justice B.A. Millar c/o Susan Borsic-Drummond Q.C. by facsimile transmission to 403-355-2405 or by regular postal mail or courier to the following address: Calgary Courts Centre, Suite 2401-N, 601 - 5 Street SW, Calgary, Alberta, T2P 5P7. Any such letter shall explain: (

A) the nature of the application; (

B) the relief being requested; (

C) the factual basis for bringing the application; and (

D) what efforts have been made to resolve the issue(

s) in question without involving the Court. 27. All letters to Susan Borsic-Drummond Q.C. shall be copied to both parties and Counsel for T irzah No correspondence is to be sent directly to Justice B.A. Millar. 28. No applications will be heard during the months of July and August unless there are reasonable and probable grounds to believe that T irzah it is being harmed or is in danger of being harmed. Time Deadlines 29. All time deadlines in this Litigation Plan refer to local time in Calgary, Alberta. 30.

If an Order of the Court is required to enforce compliance with any of the time deadlines in this Litigation Plan, the party failing to comply with the deadlines shall be subject to solicitor​ client costs for all expenses stemming from the related hearing and the preparation of the Order enforcing compliance. Case Management 31. This matter shall remain under the case management of Justice B.A. Millar and in the Case Management Counsel Project with Susan Borsic-Drummond, Q.C. until the trial.

Justice of the Court of Queen's Bench of Alberta