JO v JS, 2020 ABQB 777

Court of Queen’s Bench of Alberta Citation: JO v JS, 2020 ABQB 777 Date: 20201211 Docket: FLO1 33668 Registry: Calgary Between: JO Appellant - and - JS Respondent Restriction on Publication Identification Ban – See the Family Law Act ,

section 100 . By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey

_______________________________________________________ [ 1 ] The Father, JO, appeals a mobility decision of the Provincial Court on the grounds its process was unfair. The Mother, JS, says it was not unfair as the Provincial Court followed the process the Father agreed to in advance. [ 2 ] This appeal addresses two questions.

First, whether a court may decide what is in a child’s best interests as to primary parenting based solely on the recommendation in a Practice Note 8 (“ PN8 ”) assessment, where the litigant parents both consented to a court order in advance of the PN8 assessment saying that they would follow the recommendations in the PN8 assessment. Second, whether their consent order actually had that effect. [ 3 ] I conclude that the consent order did not have that effect and that the Provincial Court judge erred in concluding that it did.

Therefore I also conclude that the Provincial Court judge erred in making a final decision on primary parenting without according the Father an opportunity to challenge the PN8 assessment and, further, without first turning his mind to the statutory considerations when deciding the best interests of a child. [ 4 ] I also conclude that, even if the Provincial Court judge did not err in his

interpretation of the consent order, the parties’ consents did not preclude all possible grounds of subsequent challenge to the results of the PN8 assessment. The Provincial Court judge erred in concluding that the procedural unfairness grounds of challenge raised here, having prima facie foundation, could not be advanced because of the litigants’ earlier consents. [ 5 ] On that basis, for the reasons that follow, I grant the appeal and remit the matter back to the Provincial Court. Background [ 6 ] The parties are parents to a child born March 11, 2018.

After the parties separated, they shared parenting the child. [ 7 ] In May 2019 the Mother notified the Father of her wish to return to BC and take the child with her. She said this would be in the child’s best interests. The Father opposed her taking the child with her, believing that remaining with him in Calgary would be in the child’s best interests. [ 8 ] The parties agreed to the terms of a Consent Order that was signed by Judge Burrell on July 2, 2019 (the “ Burrell Order ”). It led to the joint selection and engagement of a psychologist named Ms.

Rohatinsky (the “ Parenting Expert ”) to conduct a PN8 assessment and render a report “to assist the Court”. [ 9 ] Despite that wording in the

preamble, that the PN8 was to assist the court, the Burrell Order contained terms that, the Mother says, reflected the parties’ agreement to follow whichever outcome the Parenting Expert would recommend and, within 14 days of receiving the Parenting Expert’s report, incorporate that into a final court order. If either party disagreed with the

interpretation or implementation of a recommendation they were still to abide by the recommendation, but they could trigger a mandatory mediation or arbitration process.

Both parties had counsel in the negotiation of the wording of the Burrell Order. [ 10 ] The Father does not take issue with that characterization of the context to the Burrell Order, but now says his agreement to abide by the Parenting Expert’s conclusions assumed her process would be fair. [ 11 ] On July 7, 2020, the Parenting Expert released her PN8 Assessment Report (the “ Report ”) with various parenting recommendations including, most significantly, that the child’s best interests would be better served with the Mother as primary parent following her move to British Columbia. [ 12 ] The Father was alarmed by some of the things he read in the Report, leading him to conclude the Parenting Expert’s process was neither balanced nor fair.

He gives examples, such as that the Parenting Expert received extensive documentary information from JS, including letters attached to emails from JS’ collaterals, a binder of documents with emails selected from out of the exchange of emails between the parties over the past 12 years, and a range of other letters and documents. All, he said, were information he did not know the Parenting Expert received, that he could not respond to. He said he was not even afforded a reciprocal opportunity to provide his own similar documents.

JS maintains the process was fair, that they each had the same opportunity to supply information and she chose to seize the opportunity. [ 13 ] JO did not cooperate in incorporating the Parenting Expert’s recommendations into any confirming order of the court. He asked for an opportunity to be heard, so he could challenge or respond to the Report in the context of demonstrating that the child’s best interests would be better served with him in Calgary. [ 14 ] The Mother applied to have the Court incorporate the recommendations from the Report into an order.

It came on for hearing in chambers on August 11, 2020, before Judge O’Gorman.

There the Father opposed the Mother’s request and asked the Court instead to set a process whereby he could have the opportunity to present evidence and be heard. [ 15 ] Judge O’Gorman said he read the Report “page for page” and said he couldn’t “see how … an argument could be made it should be re-litigated”, adopting the characterization of JS’ counsel of JO’s request, interpreting the Burrell Order as having pre- determined the matter by delegation of the decision to the Parenting Expert (Transcript p 9, ll 13-16; p 10, line 28; p 13, ll 9-11).

[ 16 ] Judge O’Gorman ultimately decided (Transcript, p 11, line 19 – p. 13, line 13): I’m making an order today that I’m prepared to sign an order that reflects the recommendations from Ms. Rotinsky (sic). I am staying, essentially, that signature for 14 days so that Ms.

Pritchett [JO’s counsel] can discuss and maybe get instructions to appeal.… That should be clear enough for the – and as I said, I imagine Queen’s Bench probably would say your next step is actually to go to a mediator/arbitrator.… I don’t want to prejudge what QB may say, but QB may say that [JO] perhaps should have an opportunity to perhaps lead some type of case as to why he thinks the report was unfair. I don’t think it was.… I read the order Judge Burrell that incorporated the terms of Ms. Rotinsky (sic), that the – the mother and [the child] were to relocate to Vancouver.

So, that’s where his primary location is now, Vancouver.… Okay. Thank you. (collectively, the “ O’Gorman Decision ”). [ 17 ] On August 24, 2020, JO commenced this appeal. [ 18 ] On August 27, 2020, Judge O’Gorman signed a final parenting order (the “ O’Gorman Order ”) that, among other things, made the Mother responsible for all day-to-day decisions affecting the child, ordered her to maintain primary custody of the child, and permitted the child “to relocate with [the Mother]” to BC.

Remedy Sought [ 19 ] The Father’s appeal asks that I set aside the O’Gorman Order and remit the matter back to the Provincial Court for a process that would give him the opportunity to be heard before any final order is issued on the best interests of his child for primary parenting purposes.

Standard of Review [ 20 ] The Supreme Court of Canada, in Van de Perre v Edwards , [2001] 2 S.C.R. 1014, 2001 SCC 60 , described the standard of review in custody cases this way, at para 13: [A]n appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. [ 21 ] In this case the appeal entails alleged errors in law: whether the Appellant was denied procedural fairness, in any event whether the Provincial Court judge was permitted to make – or required to make – a final parenting decision without further process and without considering the statutory factors in any determination of the best interests of the child, and whether the Provincial Court judge erred in

interpretation of the Burrell Order. [ 22 ] The standard of review for mobility orders is highly deferential: Krauss v Krauss , 2018 ABCA 367 at para 3 . The Appeal was Not Filed Too Late [ 23 ] JS says time ran out before JO commenced this appeal. She refers to the date of release of the Report. But the Report is not the decision being appealed. It is relevant to the appeal but it is not the decision under appeal. [ 24 ] The decision under appeal is the O’Gorman Order, which adopted the Parenting Expert’s recommendations in the Report.

The O’Gorman Order also reflects the O’Gorman Decision that JS will be the primary parent and that the child may relocate with her to BC. The O’Gorman Decision of August 11, 2020, is, in effect, the final decision on parenting; the Burrell Order was not. The Burrell Order contemplates the parties returning for a final order: see paragraph 16 of the Burrell Order. I discuss this further in paragraphs 38 to 41below. [ 25 ] This appeal commenced 13 days after the O’Gorman Decision and 3 days before the O’Gorman Order. It is not out of time.

Material Change in Circumstances [ 26 ] JS says JO has not first demonstrated there is a material change in circumstances before being able to have the O’Gorman Order reconsidered and varied in any way. Paragraph 16 of the Burrell Order expressly requires a party first show there to be a material change in circumstances before they may bring an application to vary. [ 27 ] The argument is misplaced. This appeal does not seek to vary the O’Gorman Order but to have it set aside in entirety as invalid, as having been rendered in error.

A material change in circumstances is a requirement to be satisfied before there can be any future variation of the O’Gorman Order, not before its very validity may be challenged on appeal. Parenting Expert not Filling the Role of Arbitrator

[28] Contrary to the submissions of JS, the Parenting Expert was not filling the role of an arbitrator. The Burrell Order said theParenting Expert’s role would be to “assist the Court”. Its terms asked the Parenting Expert to assess, to recommend and, in respect of themobility issue, to “answer”. The results were then to return to the Provincial Court and reflected in a further “Consent Order” for theCourt to “confirm”. [29] Therefore, first, this appeal is not governed by the Arbitration Act. The Burrell Order appointed the Parenting Expert toconduct a PN8 assessment, not an arbitration.

The Burrell Order was not a final order on the matter of parenting that delegated authorityto decide the mobility issue to the Parenting Expert nor did it appoint her to arbitrate and decide – only to recommend and to “answer”the Court’s question. The Burrell Order contemplated the matter returning back in Court for a further order. In the Burrell Order theProvincial Court retained jurisdiction over the mobility issue.

The Parenting Expert in her Report expressly states she is recommendingthings, as directed in the Burrell Order, not rendering a decision on any points in issue, except how the parties would bear her costs (para17, Burrell Order). [30] Therefore, second, the Parenting Expert was not conducting a judicial process that had to accord the parties the same degreeof procedural fairness as would a court of law. Nor was she conducting a quasi-judicial process, attracting a right to such proceduralprotections as would be appropriate in the circumstances: see Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817. [31] The Parenting Expert was expected to operate within the parameters of PN8 and in accordance with the guidelines andstandards of her specialization and professional college. For a PN8 assessment, some of those are found in a “Practice Guideline”publication of the College of Alberta Psychologists titled Psychological Assessment of Parenting Time and Responsibilities. It was mostrecently revised in 2019. It expressly refers to PN8 and commends a balanced approach, objectivity, impartiality, and a “spirit of fairtreatment”.

But it also expressly says that the role of an arbitrator is in conflict with the PN8 assessor role. [32] In any event, as explained above, the appeal is not from any decision the Parenting Expert made – as an arbitrator orotherwise; she did not in fact make the final decision on parenting. The appeal is from the O’Gorman Order that did make the finaldecision on primary parenting, among other parenting matters. [33] But if I am incorrect in this regard and the Parenting Expert’s assessment is governed by the Arbitration Act, RSA 2000 c. A-43, I would grant the appeal without hesitation under s 45(1)(

f) of that Act. The Parenting Expert’s process was manifestly unfair andunequal as an arbitration; she did not give JO an opportunity to respond to the volume of information from JS. It is unfair to base adecision on hearsay evidence contained in unsworn documents, particularly in matters of child custody and parenting time: DAF v SRG,2020 ABCA 25 , 2020ABCA 25 at para 12. [34] To be clear, in this decision I make no finding in respect of the alleged unfairness of the Parenting Expert or the extent of hercompliance to the professional standards applicable to her role as an assessor.

That will be a matter the Provincial Court may be calledupon to consider when the matter returns before it. My comments in the prior paragraph relate to her role if she was serving as anarbitrator, as JS argues and I conclude was not the case. In this appeal I am reviewing the fairness of the process followed by JudgeO’Gorman, not the fairness of the Parenting Expert’s process. [35] Judge O’Gorman misconstrued the Parenting Expert’s process as litigation.

He said in his Decision, for example, “…I can’tsee how, you know, an argument could be made it should be re-litigated” (Transcript August 11, 2020, page 9, ll. 15-16). There had notalready been a first litigation of the issue or, as I explain below, a waiver of that opportunity by JO. He did not relinquish that right as aconsequence of any delegation of ultimate decision-making authority to the Parenting Expert in agreeing to the consent Burrell Order.The Parenting Expert’s process was not a litigation process. JO had not had opportunity to litigate a first time.

That is what he was askingfor from Judge O’Gorman, without success. It was denied him. The Burrell Order [36] JS says that is what JO agreed to. She says that by his consent to the Burrell Order JO delegated to the Parenting Expert theauthority to decide the mobility issue, without recourse. [37] I do not find that to be the effect of the actual wording used in the Burrell Order.

The Burrell Order’s meaning and effect isdetermined by its wording, read in entirety, not by what a party might have thought it meant or intended it to mean or do. [38] The Burrell Order was not a final order on the child’s best interests or on primary parenting. The Burrell Order did notdelegate the final decision on the child’s best interests or on primary parenting.

As stated above, the Parenting Expert’s recommendationson the parenting issues and answer on the mobility question (Burrell Order, para 1) were to return to the Provincial Court and getembodied in a further “Consent Order” for the Court to “confirm” (Burrell Order, para 16). The O’Gorman Order was not a consentorder, as contemplated by the Burrell Order. The final step contemplated by the Burrell Order did not occur. [39] The Burrell Order retained to the Provincial Court the residual authority over the final parenting order.

Had there been, say,revelation of bribery of the Parenting Expert, fraud or intentional misrepresentation by a source of information relied upon by theParenting Expert, forgery of documents relied upon by the Parenting Expert, refusal by the Parenting Expert to receive explanations froma party to damning information reviewed, the Parenting Expert acting under conflicting interests, or some such other potentially fatalrevelations, the disadvantaged party still had recourse to the court.

JO says the pronounced unfairness of the Parenting Expert’s processentitled him to audience by the Provincial Court before it made a final ruling on the primary parenting and mobility issue. He says JudgeO’Gorman denied him that right in reaching the O’Gorman Decision and when rendering the O’Gorman Order. He says JudgeO’Gorman even denied him the opportunity to show with evidence the unfairness of the Parenting Expert’s process. [40] The Burrell Order provided a mechanism for any disagreement about the “interpretation or implementation of ParentingExpert’s recommendations” (Burrell Order, para 14).

The process required the parties to first implement the recommendation of the

Parenting Expert as to who would be the primary parent but then trigger either mediation or arbitration “to discuss and resolve all otherrelated … issues” (underlining added). The example used in the Burrell Order refers to issues around “the parenting time for the parentwho will not have [the child] in their primary care”. It was not designed to address the underlying issue of who would be the primaryparent, but ancillary or residual issues. The mediation/arbitration option was not intended to be a recourse for the Parenting Expert’srecommendation on the primary parenting and mobility issue.

JS’ counsel correctly said as much to Judge O’Gorman on August 11,when describing this mediation/arbitration mechanism as “not a venue of overturning” the Parenting Expert’s recommendations. Itpertains to interpreting and implementing them. [41] The dispute resolution mechanism in the Burrell Order did not apply to the most significant issue in dispute, the primaryparenting and mobility question.

Therefore, that mechanism does not bear out JS’ position that it is the answer to any unfairness in (orother grounds of challenge to) the Parenting Expert’s process and Report. [42] Can the courts ever delegate entirely the final decision on a child’s best interests related to primary parenting? Since I havefound the Burrell Order to not have the effect in fact of delegating entirely the primary parenting and mobility question to the PN8assessor, without recourse, it is not necessary to reach a conclusion on that question.

Nevertheless, I will make some preliminaryobservations on it. [43] First, I have been provided no case authority saying a judge can delegate such decisions to anyone else, even to a parentingexpert, without retaining any jurisdiction to rule further in respect of it. I have been provided no case authority saying that a judge can doso on the consent of both parties, and certainly not on the consent of both parties to an evaluative PN8 assessment, not an adjudicativethird party, becoming binding upon them in that way. [44] Second, existing case law militates against that being permissible.

There is ample authority for the proposition that in a trial ajudge cannot abdicate that role to an expert, or to anyone else for that matter: RKC v GSA, 2012 ABQB 614 at paras 213-14; AJU v GSU,2015 ABQB 6 at para 177; LAU v IBU, 2016 ABQB 74 at para 187; AE v TE, 2017 ABQB 449 at para 113.

As stated by the AlbertaCourt of Appeal in Prediger v Santoro, 2016 ABCA 11, at para 25 (underlining added): Properly, Read J did not delegate the question of the child’s best interests to the experts, or to the experienced witnesses from Children’sService, nor did she attorn to their evidence: see generally Abbott and Haliburton at para 17; Stewart v Stewart (1990) 1990 ABCA 355, 30 RFL (3d) 67 (ABCA); Durocher v. Klementovich, 2013 ABCA 115 at para 15; Lake v.

Lake (1988) (NSCA), 11 RFL (3d) 234 (NSCA); Strobridge v Strobridge (1994) (ON CA), 4 RFL (4th) 169 (ONCA); Young v Young,2010 ONCA 602 at paras 4-5, 100 RFL (6th) 86, leave denied (2011) [2010] SCCA No 416 (QL) (33939). And in non-trial processes, substantially changing primary parenting and determining the best interests of a child should not be decidedwithout the benefit of viva voce evidence, except in the case of urgency and in any event only if in the best interests of the child:Shwaykosky v Pattison, 2015 ABCA 337 at para 6.

In HG v RG, 2017 ABCA 89 at para 11, the Court said it can be necessary wherethere is urgency, as an interim measure “pending a viva voce hearing or a trial.” See, further, Zack v Popp, 2019 ABCA 50 at para 21,where even if urgency is shown, the best interests of the child must govern the court’s decision, and Crawford v Crawford, 2015 ABCA376 at para 15, where urgency had been found justifying a change but on an interim basis only. [45] Third, it remains open to parties to disputes to resolve their issues outside of court. They can do so in any manner they wish.As the Court of Appeal said in J.W.

Abernethy Management & Consulting Ltd. v. 705589 Alberta Ltd. and Trillium Homes Ltd., 2005ABCA 103, at para 26, in the context of a refusal to implement the result of a Queen’s Bench binding judicial dispute resolution ruling(underlining added): Litigants are free to resolve a dispute in any manner they wish. They may, for example, agree to flip a coin, consult a Ouija board, or leta third party decide. The parties agree on the mechanism for settlement and are bound by their agreement.

In the case of a binding JDR,the parties agree not only to participate in the JDR, but also to implement the judge’s views if they are unable to negotiate a settlement.What makes the JDR “binding” is the parties’ binding contractual commitment: the judge’s decision is imposed on them as a result oftheir contract, not the court’s authority. Therefore, if the settlement falls apart, the parties must sue on their contract, not enter a judgmentbased on the judge’s opinion. But that is not what happened here. The Burrell Order was not worded in the nature of an enforceable contractual agreement.

Thereshould be no judgment entered based on the Parenting Expert’s opinion, without more. [46] Here the Court engaged the assistance of a parenting expert the parties could select and said, in words the parties crafted, theCourt would be willing to confirm that expert’s recommendations in a consent order (para 16, Burrell Order).

But that did not happen.There was no consent by JO confirming the Parenting Expert’s opinion on primary parenting. [47] Even if it is permissible to waive one’s rights to procedural fairness and to having the Court determine according to law whatis in their child’s best interests by delegating that decision without any recourse to a third party, even by the parties’ consent to aParenting Expert under the guise of a PN8 assessment, then in my view it would only be a valid waiver of rights on the clearest oflanguage.

To have such remarkable effect, there should be no doubt as to the wording used. [48] The Burrell Order fell short of the requirement of such clear language for it to have that effect. Judge O’Gorman erred inproceeding as if it did have that effect. It did not. At best it is ambiguous on the point and that is not sufficient.

O’Gorman Decision and O’Gorman Order [49] Even if the Burrell Order did constitute such an absolute waiver, a judge is able to direct a change in process from that which aprior judge dictated by order, when it becomes apparent the change is necessary: Nieuwesteeg v Barron, 2009 ABCA 235 at para 10.Judge O’Gorman erred in construing the Burrell Order as determining with finality the matter of primary parenting and mobility, in

concluding the Burrell Order delegated that decision to the Parenting Expert, and in concluding it prevented him from acceding to JO’s request for an opportunity to be heard. [ 50 ] The fairness concerns JO alleges occurred here have facial merit. They may not prevail after actually being heard – I have not heard them nor JS’ responses to them – and therefore cannot reach any conclusions on their ultimate merit.

But I do note the Alberta Court of Appeal’s further comments in Crawford , at para 11 : Similarly, this Court in Charles v Young , 2014 ABCA 200 at para 3 , 577 AR 54 did not approve procedural shortcuts that infringe reasonable procedural expectations of parties or risk adjudication on an inadequate or one-sided record.

See likewise Nafie v Badawy , 2015 ABCA 36 at para 106 , 599 AR 1, leave denied [2015] SCCA No 128 (QL) (36371). [ 51 ] JO was entitled to have his concerns heard in an appropriate and fair process by the Provincial Court before the primary parenting and mobility question was determined with finality.

The following comments in Charles v Young , at para 5 , are apposite: While we can understand the desire to bring closure to this long-standing matter, that cannot take precedence over conducting a hearing in a procedurally correct fashion which permits application of the required legal analysis. [ 52 ] The O’Gorman Order became the final parenting order, but it was rendered based on the recommendations of the Parenting Expert alone, without JO’s confirming consent as anticipated in the Burrell Order, and without his having opportunity to adduce evidence and be otherwise heard on whether the Parenting Expert’s process in reaching her recommendations was unfair or even on whether the Burrell Order was final.

The O’Gorman Order made the final ruling on the best interests of the child without considering the mandatory factors required pursuant to ss 18 and 32 of the Family Law Act , SA 2003, c F-4.5 . A judge deciding the best interests of a child is “obliged to consider all the factors relevant to determining best interests”: DAF v SRG , 2020 ABCA 25 at para 20 .

Conclusion and Consequential Matters [ 53 ] For these reasons I am granting the appeal, setting the O’Gorman Order aside effective January 8, 2021, which delay I explain below, and remitting the matter to the Provincial Court. [ 54 ] I urge the Provincial Court to accommodate its return on the earliest date(

s) manageable since PN8 assessments have a short shelf life, particularly when the child involved is so young. In that regard, I concur with the observation of this Court in AJU , at para 175 a). It is important that the parties’ investment into the Report not be diluted by any avoidable passage of further time. [ 55 ] In the event I granted the appeal, the Father asked me to further order the parties return to shared parenting, as had been their status quo for pretty much the entire time between their separation and their receipt of the Report.

That sharing was not fully equal and involved very frequent exchanges between the parents. The child is now somewhat older and geography makes that frequency of exchange both impractical and unlikely in the child’s best interests. [ 56 ] JO proposed sharing the parenting of the child, until the matter can return for determination by the Provincial Court, on the basis of 2 weeks on and 2 weeks off with each parent, saying that would be fairest in the current circumstances. I declined to hear from the parties on that point until I decided the appeal. Therefore, I am not in a position to fairly rule on it.

Also, as noted above, even interim rulings affecting children must be made with regard to their best interests and I received no current evidence on that. [ 57 ] The Christmas season is imminent. The O’Gorman Order determined the child’s place of residence each Christmas. It would be best to not disturb that so close to the event. The Christmas season also means increased challenge in getting such issues determined by the courts, if the parties cannot agree on an interim regime pending its return to the Provincial Court.

Exacerbating the ability to access the courts in timely fashion, the provincial government’s recent escalated restrictions on workplaces because of COVID-19 have necessitated court applications being cancelled or postponed and therefore even less time available for parties to access the courts of the province. [ 58 ] It is for those reasons that I pushed out the effective date of my setting aside of the O’Gorman Order. It shall continue to operate in entirety until the earlier of (

i) written agreement of the parties on an interim parenting regime, (ii) an order of the Provincial Court on an interim parenting regime, and (iii) January 8, 2021. That is, the parties will need to seek an interim ruling from the Provincial Court to take effect no later than January 8. [ 59 ] The parties may contact my assistant to arrange a means of speaking to me on costs if, after 30 days and good faith efforts, they have been unable to agree. Heard on the 8 th day of December, 2020. Dated at the City of Calgary, Alberta this 11 th day of December, 2020.

P.R. Jeffrey J.C.Q.B.A. Appearances: Penny L. Pritchett for the Appellant JS, Self Representing Respondent