VOE v LLE, 2021 ABQB 450

Court of Queen’s Bench of Alberta Citation: VOE v LLE, 2021 ABQB 450 Date: 20210609 Docket: 4801 150326 Registry: Calgary Between: VOE Applicant / Plaintiff - and - LLE Respondent / Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ [ 1 ] VOE and LLE are former spouses. They have a single child. On June 2, 2021, VOE, by email, referred to me what he called an “unfiled” Application by LLE, and a corresponding Affidavit sworn by LLE on February 12, 2021.

VOE claimed these filings are a candidate Apparently Vexatious Application or Proceeding [AVAP], pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. [ 2 ] Briefly, the Application seeks two steps:

1. varying the parenting arrangements of the child of VOE and LLE, and 2. determining VOE’s child support obligations. [ 3 ] VOE states the Application and Affidavit: 1. are a collateral attack on earlier arrangements between VOE and LLE that were imposed by this Court; 2. that LLE’s Affidavit contains “false, unmeritorious, bald allegations”; and 3. this litigation exhibits many indicia of abusive litigation: ... collateral attack, Hopeless proceedings, advancing improper proceedings outside jurisdiction, misconduct that is intended to or has the effect of circumventing the operation of court orders, matters Res Judicata, bringing proceedings for improper purposes, escalating and expanding proceedings, inappropriate demeanour and unjustified belief, unsubstantiated allegations of fraud and misconduct, scandalous and inflammatory language, and failing to abide by Court Orders. [Sic.] [ 4 ] VOE states LLE is a vexatious litigant, her Application should be dismissed on that basis, and LLE should be subject to court access gatekeeping steps. [ 5 ] VOE is self-represented.

LLE is represented, and the “unfiled” Application and Affidavit were prepared by her lawyer. VOE included in his materials an email dated February 12, 2021, from the office of LLE’s lawyer, indicating that the alleged candidate AVAP Application and Affidavit were: ... filed this day with the Court of Queen’s Bench. Filed, stamped copies of same shall be provided to you as soon as we are in receipt of same from the Clerk’s office. [ 6 ] VOE’s CPN7 referral is rejected.

First, I have reviewed the allegedly problematic filings and do not identify prima facie defects that mean this process is a “clearer case of abuse” that would warrant the Court conducting a CPN7 process: Unrau v National Dental Examining Board , 2018 ABQB 874 at paras 22 , 24. Parenting arrangements and child support are sometimes an ongoing process, so repeated applications in relation to parenting and child support are not necessarily a collateral attack.

Martin J in Colucci v Colucci , 2021 SCC 24 at para 28 observes orders of this kind are “never final”. [ 7 ] I further note, specifically, that evaluation of VOE’s child support obligations was ordered by the Alberta Court of Appeal in VOE v LLE , 2019 ABCA 201 at para 11 . That decision was attached to LLE’s Affidavit. I do not have the authority to disregard that binding instruction of a superior Court. [ 8 ] Second, I conclude, on a balance of probabilities, that VOE has not conducted his CPN7 referral in good faith, but instead has done so for an improper and abusive purpose.

VOE has not been honest with the Court. LLE’s Application and Affidavit were filed and that resulted in hearing before Justice Bensler on March 24, 2021. Justice Bensler found in favour of LLE in relation to the parenting arrangements component of the Application, and ordered costs in favour of LLE. The Parenting Order that gave effect to the March 24, 2021 decision was filed on April 15, 2021. VOE did not disclose any of that.

Instead, his letter only directed the Court’s attention to records from 2016-2017. [ 9 ] In short, VOE has attempted to use the CPN7 process to conduct a retroactive striking/reversal on proceedings he has already lost. VOE’s legally valid method to challenge the outcome of the March 24, 2021 hearing is an appeal to the Alberta Court of Appeal. Instead, VOE’s CPN7 referral is a collateral attack on concluded proceedings.

VOE is the party in this matter who is engaged in abusive litigation. [ 10 ] To date, the overwhelming majority of CPN7 referrals by litigants per CPN7 paragraph 6 have resulted in a full two-step CPN7 process.

As a consequence, this Court has not yet investigated whether an unsuccessful CPN7 referral should result in a costs award, and, if so, under what circumstances would a costs award be appropriate. [ 11 ] I, therefore, request that VOE and counsel for LLE submit to me, by June 24, 2021, up to five pages of written submissions as to whether VOE should pay LLE costs in relation to his rejected abusive CPN7 referral, taking into account my finding that VOE’s CPN7 referral was a collateral attack on a prior court decision, an abuse of the court, and made for improper purposes. [ 12 ] VOE may be served this Decision by email to the address listed in his AVAP referral letter.

Dated at the City of Calgary, Alberta this 9 th day of June, 2021. J.D. Rooke A.C.J.C.Q.B.A.

Appearances: VOE Self-Represented Litigant