AR v JU, 2021 ABQB 127

Court of Queen’s Bench of Alberta Citation: AR v JU, 2021 ABQB 127 Date: 20210219 Docket: FL01 17010 Registry: Calgary Between: AR Applicant - and - JU Respondent _______________________________________________________ Endorsement , Regarding Leave to Make an Application for the Recusal of Associate Chief Justice Rooke, of the Associate Chief Justice J.D. Rooke _______________________________________________________ Introduction and

Summary of Disposition [ 1 ] On September 29, 2020 (renewed on December 7, 2020 and February 5, 2021), AR, brought a leave application, referencing

an affidavit dated September 28, 2020, and an Argument Brief (undated), seeking that “ACJ Rooke recuse himself from this matter andthat a new Justice be appointed to make any further decisions in this matter”. It was implicit in this request, that, if I did not voluntarilyrecuse myself, AR was seeking leave to file a formal application for my recusal (Recusal Leave Application). [2] I do not voluntarily recuse myself from this matter, not because I wish to continue to case manage it and hear applications inthis long and acrimonious family law parenting case[1], but rather because, absent a change as a result of the appeal(

s) launched, or afundamental change in circumstances, the parenting decisions of the Court are now final, and little to no further litigation shouldreasonably be necessary.

However, even more important, having taken over from another justice who recused on her own motion, andlearning of the background of these parties, I now have the responsibility to make sure that the parties only have access to the Courtwhen it is clearly necessary and proper, and do not otherwise further drain valuable judicial resources, by virtue of imposing, monitoringand hearing any leave applications before the actual applications are allowed to proceed. [3] Furthermore, I deny this Recusal Leave Application, because to allow it to proceed would be contrary to all judicialprinciples and the facts regarding bias and apprehension of bias, and in the result would have no chance of success, only further drainingvaluable judicial resources. [4] Moreover, AR has already appealed my Interim Order of June 22, 2020, and the Amending Interim Order and InterimDecision (2020 ABQB 408), each of July 15, 2020, to the Alberta Court of Appeal (not yet heard), and is likely to do so regarding myReasons and Final Order (2021 ABQB 112) (“Final Reasons”) of February 11, 2021, and many of the grounds for recusal submitted inher Recusal Leave Application are able to be argued and adjudicated in that/those appeal(s), should the Court of Appeal wish to hear ARon those issues.

Law Applicable to Recusal [5] I don’t need to go any further on this issue, in my personal context, than to reference three of my decisions, in differentfactual situations from the one at Bar, but setting out the applicable principles nonetheless: R. v. Stephan & Stephan, 2019 ABQB 611,at paras 19-31, 37-49, more generally at 79-85, and, in conclusion, at 95-6; Piikani Nation v. McMullen, 2020 ABQB 87, primarily atparas 12-25, appeal denied 2020 ABCA 366, primarily at paras 51-63; and Simon v. Feeney, 2020 ABQB 641, at paras 15-33 (appealpending). See also Point on the Bow Development Ltd. v.

William Kelly & Sons Plumbing Contractors Ltd., 2005 ABQB 368, and2005 ABCA 310, both at para 5. See too, in a more similar situation to the one at Bar: Zak v. Zak, 2021 ABQB 80, particularly at paras10-22 (Price J.). There are many other cases on the subject, to the same effect as to the law, but applicable to different fact situations,including those referenced by AR: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, at paras 58-65; R. v. Campbell, (SCC), [1997] 3 S.C.R. 3, at para 113, used in another context; and R. v.

S. (R.D.), (SCC), [1997] 3S.C.R. 484, with particular emphasis to para (2) of the headnote, and paras 11, 31-49, 58 and 109-117. Analysis of the Allegations in the Context of the Law [6] There is a 57 para affidavit from AR dated September 28, 2020, with over 370 pages of attachments, which addressesallegations for which AR seeks recusal, as does her 51 para Argument Brief. Pre-Judgment [7] The first allegation of an apprehension of bias in the Recusal Leave Application (para 2. (a)) relates to me allegedly “makingmultiple pre-judgments with regards to the parties’ conduct and responsibility”.

No particulars are provided by AR, or they are buried inher, not necessarily correct, perceptions within the 57 para affidavit. Thus, there is nothing, or little, with which to analyze (and, eventhere, there are often conflicting positions/evidence from JU or CFS, in comparison to AR’s perceptions), never mind, find any supportfor a reasonable apprehension of bias. The record before the Court is replete with evidence and arguments about “the parties’ conductand responsibility” and the Court’s findings in relation thereto.

The fact is that throughout my involvement with this Family, I have been,indeed, trying to examine the conflicting positions and some evidence of the parents, and the often unclear conclusions of CFS (raised byAR at paras 14 and of her Affidavit), and, in effect, “read between the lines” (i.e. make judgments) on conflicting views, as to whatwould make relations within this Family better.

In doing so, I, indeed, exercised judgment (not pre-judgment) in trying to find a way tore-commence parenting to JU, in a way, and with conditions, that addressed the concerns of CFS regarding JU (as contained in variousorders of the Court – culminating in the Amended Interim Order and now the Final Order), that made for better short term and long termcare for the children, while trying to minimize conflicts between the parents, with, at best, their different parenting styles.

Whatever theundisclosed particulars might have been, and whatever others with authority think of my actions (some of which are addressed in myFinal Reasons – see paras 1

a) and b)), that would, at best, be a potential ground for appeal (with more details), not a finding of anapprehension of bias. Set-Up of the s.126.11 Application [8] The second allegation (para 2. (

b) of the Recusal Leave Application, paras 7 to 35 of AR’s Affidavit, and paras 19 - 27 ofAR’s Argument Brief) relates to the delay in setting the s. 126.11 Application and “making findings that the lack of ... hearing was theresponsibility” of AR. I have addressed this somewhat in my Interim Decision of July 17, 2020 and in my Final Reasons, particularly atparas 1, and 1 b) -

d) of the latter.

I will not give evidence herein[2], but there were at least three clear factors that influenced theresponse to the original application for leave to formally file the s. 126.11 Application: (1) was there a need for it, if parenting could beworked out after the Provincial Court terminating the Supervision Order in late November 2019 (see the last line of para 12, last sentenceof para 18, and paras 21 and 47 of AR’s affidavit); (2) if there was a need for the s. 126.11 Application, could some parts be released foruse in the Court by consent of the parties and the Director; and (3) when consent was determined to be untenable, and a formal hearingwas necessary, there was the requirement to get the RDF properly before the Court and the parties so that submissions thereon could bemade and decisions rendered.

When, after May 26, 2020 (see para 7 of AR’s Affidavit), on June 22, and July 15, 2020, in the Interim and

Amended Interim Order, and Interim Decision of July 17, 2020, it became obvious that there was a need for a formal hearing to determine that s. 126.11 Application before a Final Order could be decided, the Court granted a fiat for formal filing, but when AR took no steps with CFS to formally [3] put the RDF properly before the Court and accessible to the parties on which to make submissions (see paras 33 and 34 of AR’s Affidavit), I did so, on July 17, 2020, by my Interim Disclosure Order [4] (see para 1

d) of my Final Reasons). Whatever my findings on the role of AR, if any, in delay of the matter, it really does not matter. Thereafter, the parties provided their evidence and submissions, in accordance with para 18 of the Amended Interim Order of July 15, 2020, and the Court made a Final Order. Any judicial error in that process, if material, is for the Court of Appeal to decide, but that does not make it any basis for a apprehension of bias.

Pre-Judgment in the Interim Order [ 9 ] The third allegation (paras 2. (c), 3., 4., and 5. of the Recusal Leave Application), relates to alleged “pre-judgment and abuse of process in making a quasi final decision (‘interim’ in name only)”. Indeed, an interim decision is, by its very nature, “quasi final”, based on what is known at that time, but subject to what was not yet know.

The Interim Order was, in fact, based on the findings in Justice Poelman’s decision, in affidavits and submissions of the parties to the Court to June 22 nd , and was only awaiting affidavit evidence and other written submissions from the parties relating to the s. 126 Application and in response to the Amended Interim Order, which were all received, in substantial volume, by the Court by September 29, 2020 and have been considered in the Final Order and Final Reasons.

Contrary to the allegations at para 6 of the Recusal Leave Application, it was necessary to have that material in place to see if there were any fundamental errors in the Amended Interim Order, as the Court found there were not, but some minor additional conditions and prohibitions were required. [ 10 ] Moreover, to the extent that the Court made errors in its Amended Interim Order and Interim Decision (para 5 of the Recusal Leave Application and 6, 10. b & 11) of AR’s Argument Brief) that is for the Court of Appeal to determine, and the consequences thereof, if any.

As to the facts, to the extent that I found (I didn’

t) that “AR is somehow responsible for the CFS intervention” is untrue, that was a submission expressly or impliedly made by JU to that effect and thus is evidence before the Court of “JU’s say-so”. However, whoever it was who complained doesn’t really matter (“is utterly irrelevant who made the call ... [that] lead to an intervention”. CFS proceeded to investigate the parents, and, in particular, JU, with my judicial finding as I have said before, that AR “heaped fuel on the fire”, as a means to obtain sole parenting of the Children.

Indeed, there were some “concerns that ... [are not] unfounded”, nor “essentially fabricated”, and the Court has dealt with those by prohibitions and conditions in the Interim and Final Order. AR also alleges that the Court went “so far as to insinuate that it was [AR’s] deliberate effort to alienate [JU] from the Children’s lives” and to “effectively exclude JU” from parenting – it was not a mere insinuation, it was an actual judicial finding, in spite of her statements to CFS, on the “CFS record”, and to the Court. Decision without Hearing [ 11 ] The fourth allegation (para 2. (

d) of the Recusal Leave Application), and para 29 of AR’s Argument Brief, relates to an alleged “abuse of process in making such a decision [the Amended Interim Order and/or the Final Order?] without a hearing, despite not having the agreement of all the parties, and without allowing any proper oral submissions”. There were case management hearings and affidavit evidence provided to the Court before the Amended Interim Order, and extensive affidavits and arguments before my Final Reasons and Final Order herein.

In face of Covid – 19 issues, and revised court procedures in the Court permitting written hearings, and with the Court trying to get approval of all for written submissions only (AR failing to formally agree), the Court reverted to the Covid- 19 related procedures of the Court to allow an extensive written hearing, rather than an oral hearing, process. There is no evidence that AR did not tell (and, indeed, repeat) in her extensive written submissions, anything that she could have added orally. The Court concluded that, in the circumstances, further repetitive oral submissions were unnecessary for a fair result.

Refusing to Returning to Justice Poelman’s 2016 Order [ 12 ] The fifth allegation (para 2. (

d) of the Recusal Leave Application, and para 14. a), 23 and 31 of AR’s Argument Brief), relates to an alleged “abuse of process in giving misleading directions to the parties to prepare their submissions with a view to returning to Justice Poelman’s 2016 Order, with only minor changes and conditions, but them making a sweeping decision that overturns the 2016 Order altogether and changes the Children’s primary care”. Justice Poelman’s 2016 Order was opposed by both parties from the beginning and unsuccessfully appealed.

Moreover, its co-parenting basis was deteriorating by, inter alia , evidence of AR dominating the children to the exclusion of JU, through home schooling, unilaterally setting extra-curricular activities that interfered with JU’s parent time, having the children so fatigued when they had parenting time with JU such that there was little quality to JU’s time with the Children, etc.

After the Interim Supervision Order was terminated in Provincial Court, with some of the concerns regarding JU at least somewhat alleviated to the satisfaction of CFS (see para 14 of AR’s Argument Brief), or capable of conditions to be imposed (no corporal punishment, orders prohibiting discussion of adult and parenting issues with the Children – allegedly still being breached, proper housing with JU for the children, etc.), the Court was, in fact, of the view that there could be a return to some aspects of Justice Poelman’s 2016 Order.

However, the parties submissions to the Court caused the Court to come to the decision that co-parenting would never work for these parties, and parallel parenting would be required with conditions that minimized conflict. In the result, except for some conditions, it was much like the Justice Poelman Order, but with a different parent paradigm and added conditions to minimize conflict.

Moreover, after the Amended Interim Order was put in place, the parties were given full opportunity to provide evidence and argument as to why they thought that should be changed before the Final Order and submitted hundreds of pages of evidence and argument relative thereto. Seizing Case Management [ 13 ] The sixth allegation (para 2. (

f) of the Recusal Leave Application), is so weak that it hardly merits mentioning. It is an allegation that I “improperly seiz[ed myself with] this matter [case management] where jurisdiction already resided with another judge”.

I wish I had never taken over case management of this case to spend the several hundred hours that I have since. However, the evidence is that Justice Horner recused herself as of November 13, 2019, and as the Associate Chief Justice, with responsibility to name a new case management justice, and without wanting to impose these parties on any other justice (see paras 44-45 of AR’s Argument Brief), I appointed myself. Justice Devlin held only one hearing in the interim to stay parenting to JU pending my investigation of the matter, and to create a transition between the two case management justices.

This is a matter of judicial management and appointment, not a reasonable apprehension of bias. Reliance on Children’s Counsel [ 14 ] The seventh allegation (para 2. (

g) of the Recusal Leave Application, and para 46 of AR’s Argument Brief, relates to alleged “inappropriate reliance on Counsel for the Children, asking him to be a go-between with the parties and the court ... even tasking him with determining the Children’s best interest”. There was reliance by the Court on the Children’s Counsel to provide advice on the “Children’s best interest”, not determine it.

Additionally, as the only neutral between the parties, Children’s Counsel could advise the Court on matters that could not be properly determined directly from the Children, without going through a professional child psychologist which had not been the subject of any application during my case management, although there is recent communication about leave to apply for a Voice of the Child report. Bias about Home Education [ 15 ] The eighth and last allegation (para 2. (

h) of the Recusal Leave Application) relates to an alleged “personal and/or institutional bias about home education, which resulted in a pre-judgment on the issue and a failure to consider the particular circumstances of the family”. I don’t know what “institutional bias” is, in this context. However, there is not any evidence of personal bias. Indeed, it was the “particular circumstances” of this family” that caused the Court to change it – failure of AR to obey the Order of Justice Poelman to get court permission (see para 17

b) and

e) of AR’s Argument Brief), and, whatever the merit of AR’s home schooling expertise per se , there was evidence and argument of it being used to add schooling time to AR’s parenting time, to the exclusion of JU, and the Court’s perception of the need for these Children to have access to other children and teachers (see paras 48-50 of AR’s Argument Brief), rather than being in the constant care only of their two feuding parents. A justice’s experience, as a citizen and as a justice in family cases, it not a matter to be ignored, as it is not, per se , a matter of an apprehension of bias.

Other allegations in AR’s Affidavit ad Argument Brief [ 16 ] Without wishing to deal with every piece of “evidence” in AR’s 57 para Affidavit (most are, as usual, inadmissible argument or opinion) and 51 para Argument Brief, not already dealt with above, there are a couple of other points to be made.

a) In answer to paras 5 and 17

a) of AR’s Argument Brief, I have found that there was and is evidence of “parental alienation” of the Children by both parents (see also para 16 of AR’s Argument Brief), that neither parent would admit, and not always apparent “on the surface”, requiring a deeper understanding and analysis by the Court.

b) In reply to para. 7 of AR’s Argument Brief, AR raises the issue about the unreasonableness of JU refusing to exercise access up until the time when I became case management justice. I found early on in that process that he believed that there were allegations of physical and sexual abuse of the boys against him, and he refused to exercise access with that hanging over his head. He denied that either had happened, but there was some evidence of corporal punishment and poor disciplinary practices (which I have tried to correct by forbidding corporal punishment).

At that time, I found that there was some justification in his refusal, in face of his belief in such allegations. However, on reviewing the RDF, there was no evidence of CFS investigating sexual abuse, so that proved ultimately that he was, on the basis of actual fact, not reasonable in refusing access on that basis, notwithstanding his professed belief that was alleged against him.

There were additionally some unilateral conditions for his refusing access based on his parenting time (50%/50%, or at least 46%), but there was, in my findings, with conditions to correct some of these behaviours, no reason why he should not have equal parenting time, which was substantially, the general intent of Justice Poelman’s decision. However, if my findings were in any way in an error, and it had an adverse affect on my resulting decision, that it is a matter for the Court of Appeal, not a matter for recusal – any finding of a judicial error, is not, by itself, a finding of an apprehension of bias.

c) Finally, in reference to paras 9 and 10 of AR’s Argument Brief, there was indeed, alleged improper treatment by JU of the Children that justified CFS to start an investigation (housing by JU, corporal punishment and other inappropriate discipline by JU, JU (and, indeed, I find, both the parents) enmeshing the Children in the court battles, and CFS’s view of JU’s unacceptable conditions to exercise access (see previous para herein), etc.

However, CFS asked the Provincial Court to terminate the Interim Supervision Order, without a final hearing, because they concluded that there was no longer the level of concern of harm that justified their continuation, and they concluded that they were merely being used to further arguments (primarily by AR, I found) in relation to the “ongoing significant battle between these two” parents.

Conclusion [ 17 ] I find that, applying the proper test for a reasonable apprehension of bias, whether as articulated in para 2 of AR’s Argument Brief, or as better nuanced in other authorities which I have referenced, and specifically summarized in the tests set out in Bosse v.

Lavigne , 2015 NBCA 54 , at para 7 (see also Point , at para 5), with the strong presumption of judicial impartiality, no reasonable, well informed person, with knowledge of all the relevant circumstances of the case, after a full realistic and practical examination of the situation, having thought the matter through, would find a reasonable apprehension of bias. Thus, leave to bring the proposed Recusal Application is denied, as I find that it would have no likelihood of success.

Dated at the City of Calgary, Alberta this 19 th day of February, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: AR - Self-Represented for the Applicant JU - Self-Represented for the Respondent Bradley S. Spier For the Children