Zak v Zak, 2021 ABQB 80

Court of Queen’s Bench of Alberta Citation: Zak v Zak, 2021 ABQB 80 Date: 20210201 Docket: 4801 182850 Registry: Calgary Between: Colin Matthew Zak Plaintiff/Respondent - and - Jacqueline Louise O'Driscoll Zak also known as Jacqueline O’Driscoll Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C. Price _______________________________________________________ I.

Introduction [ 1 ] The Defendant mother, Jacqueline Louise O’Driscoll Zak, seeks to have me disqualified as case management justice on the basis of a reasonable apprehension of bias. This application arose after I directed on December 10, 2020 that the parties attend a case management meeting on December 15, 2020. [ 2 ] The parties are in a high conflict parenting dispute. They were married in 2014 and have been separated since July 2019.

There are two children of the marriage, ages 5 and 2. There have been several interim parenting orders since their separation. [ 3 ] The parties appeared before me at a Domestic Special on July 29, 2020 and I reserved my decision to August 13, 2020.

I granted two interim orders arising from that Domestic Special, one on August 13, 2020 and another on August 24, 2020. [ 4 ] The August 13, 2020 order directed, among other things, that the parties retain a professional under Practice Note 7 to provide a therapeutic intervention for the purpose of reunification between the children and their father, Colin Matthew Zak, and I seized myself with the parenting issues. [ 5 ] The August 24, 2020 order imposed a parenting plan on the parties that largely adopted the father’s proposal. [ 6 ] The mother applied for permission to appeal and to stay my orders.

On September 16, 2020, Justice Rowbotham of the Court of Appeal granted permission to appeal and a stay of my orders. She did not interfere, however, with the aspect of my order in which I seized myself. Justice Rowbotham also directed that the parties commence family reunification counselling with Dr. Froberg as soon as possible and in any event no later than September 30, 2020. [ 7 ] The appeal was heard on an expedited basis on November 30, 2020 and the Court of Appeal rendered its Memorandum of Judgment on December 4, 2020: Zak v Zak , 2020 ABCA 431 [ Zak ].

In that decision, the appeal court affirmed my decision, dismissed the appeal, and remitted the matter back to me for further determination. [ 8 ] As stated above, in the current application the mother seeks to have me disqualified as case management justice. She alleges four specific instances of bias: i. Findings made in my Oral Reasons for Decision given on August 13, 2020; ii. The December 15, 2020 case management meeting; iii. Dr. Froberg’s attendance at the December 15, 2020 case management meeting; and, iv. Unwillingness to consider the

schedule of experienced counsel. [ 9 ] I will address each of these allegations in turn, after setting out the law in relation to allegations of reasonable apprehension of bias. II. Analysis a. Legal Test Relating to Allegations of a Reasonable Apprehension of Bias [ 10 ] The test for a reasonable apprehension of bias is well settled and undisputed.

As was noted by the Supreme Court in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at para 20 , [2015] 2 SCR 282, the established test for reasonable apprehension of bias is: "...what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly... [citation omitted] " [ 11 ] In Feeney v Simon , 2020 ABQB 641 , Rooke ACJ succinctly summarized the legal principles with respect to bias at paras 15 to 21, the key aspects of which are as follows: A simple allegation of bias or misconduct is not a basis for judges to remove themselves from a matter. The strong presumption of judicial impartiality is not easily displaced. Appeal courts do not impute bias lightly; judges are presumed to act impartially.

An unfavourable result or conclusion by a judge in relation to a party is not in itself a basis to conclude there has been bias or prejudice. Repeated unfavourable results also are not evidence of bias, particularly in the context of case management. [ 12 ] Associate Chief Justice Rooke then quoted a useful

summary of the relevant legal principles that guide how a court evaluates allegations of judicial bias taken from the New Brunswick Court of Appeal’s decision in Bossé c LaVigne , 2015 NBCA 54 at para 7 , at para 21 of his own reasons: The elements of this objective test are that (1) the person considering the alleged bias must be a reasonable person, not one who is very sensitive or scrupulous, but rather one who is right-minded; (2) the person be a well informed person, with knowledge of all the relevant circumstances; (3) the apprehension of bias itself must be reasonable in the circumstances of the case; (4) the situation must be fully examined, not just the face of it; and, the examination must be one that is both realistic and practical; (5) the inquiry begins with a strong presumption of judicial impartiality and looks to determine whether it has been displaced such that there is a real likelihood or probability of apprehension that the judge would not decide the case fairly on the merits; ... [Underlining emphasis in original.] b.

Application of the Legal Principles to the Facts in this Case

[ 13 ] Applying the test and these principles, the question that must be answered is: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would she/he/they think that it is more likely than not that Justice Price, whether consciously or unconsciously, would not decide fairly? [ 14 ] I will now address the specific instances of alleged bias upon which the mother relies to disqualify me as case management justice. i.

Findings Made in My Oral Reasons for Decision Given August 13, 2020 [ 15 ] It was submitted by counsel for the mother that I made “disparaging remarks” about the mother and reached conclusions about her in my oral reasons for decision rendered on August 13, 2020, that would lead a reasonable person properly informed and viewing the matter realistically and practically to conclude that I could not case manage or decide the case fairly . [ 16 ] The mother’s bias application included the bolded portion of the following paragraphs from the transcript of my oral reasons.

I have included the full paragraphs to provide a bit more context for these comments: Furthermore, what is clear from the evidence is that Colin is trying to have parenting time with the Children and his time is being interfered with to the extreme as earlier outlined. The parties both admit that the Children have been traumatized by recent events that occurred while Colin was attempting to access his parenting time. However, I find that Jacqueline has significantly contributed to this trauma. I would even say she ignited it, and now it is aflame .

To ensure the greatest possible protection of the Children's physical, psychological and emotional safety and considering their needs and circumstances, they need to be reunified with their father, and their mother needs to stop her obstructive, intrusive poisonous behaviour . [ 17 ] My oral reasons for decision were quite lengthy.

In those reasons, I found that the mother was in contempt of court for having breached two previous parenting orders and I found that the mother had engaged in alienating behaviour. [ 18 ] As earlier stated, the mother appealed my findings and set out many issues for the Court of Appeal to consider including “whether the chambers judge was, or appeared to be, biased.” [ 19 ] In its Memorandum of Judgment upholding my decision, the Court of Appeal made the following comments on the issue of alienation and bias, at paragraph 7: 7 We are not satisfied that the appellant was denied procedural fairness or that the case management judge was not impartial.

The parental alienation issue was fully argued and the case management judge’s finding of alienation by the appellant is supported on the record. There is no basis for any suggestion of lack of impartiality. [ 20 ] It is trite law that the fact that a judge has found against a party does not constitute evidence of bias. Equally, the fact that a judge has made findings of fact that one party has behaved poorly does not constitute evidence of bias.

Indeed, in cases of high-conflict family litigation such as this one, where countervailing allegations of abuse/alienation are exchanged, both parties are expressly asking the Court to make such negative findings about one party or the other. Whether those findings are legally supported is a question for the hearing justice based on the evidentiary record, whose decision can then be affirmed or reversed by the Court of Appeal. The Court of Appeal can also review the matter and ensure the initial decision followed proper processes.

This is how events unfolded in this case and the Court of Appeal has made its determination on the matter. [ 21 ] An unhappy litigant is not empowered to change case management justices simply because he/she has lost, and lost on unflattering terms. Withdrawing unnecessarily would undoubtedly add to the burden of my colleagues and would contribute to delay in the proceedings.

The delay would further impact the children, which would not be in their best interests. [ 22 ] I find that a reasonable person properly informed and viewing the matter realistically and practically would not conclude based on the comments and findings in my oral reasons for decision on August 13, 2020 that I could not decide the matter fairly. The comments and findings I made were supported by the evidentiary record, as confirmed by the Court of Appeal, as was the lack of bias. ii.

The December 15, 2020 Case Management Meeting [ 23 ] Counsel for the mother also submitted that requiring the mother to attend a “last minute non-emergency” one-hour case management conference in the absence of counsel on December 15, 2020 would lead a reasonable person properly informed and viewing the matter realistically and practically to conclude that I could not case manage or decide the case fairly. [ 24 ] To put this allegation into context, it is necessary to review the Court of Appeal’s decision and the communications that were exchanged thereafter. [ 25 ] The Court of Appeal stated the following with respect to case management of the matter: 8 The parenting

schedule adopted by the case management judge has expired so the issue of its suitability is largely moot. However, although some of the evidence in the fresh evidence applications is inadmissible hearsay, the admissible evidence before the case management judge and in support of the fresh evidence applications raises a concern that one of the children may have experienced distress during the respondent’s parenting time and that the parenting

schedule adopted by the case management judge may have been impractical or unworkable. The

schedule may have moved too quickly towards unsupervised access and overnight stays. It would have been helpful for the case management judge to provide reasons for selecting the respondent’s parenting schedule.

9 As an appellate court, we are not in a position to resolve the parties’ competing positions nor to fashion a new parenting plan. The determination of a new parenting plan that is in the best interests of the children should be considered afresh by the case management judge. We question the utility of Practice Note 7 in the circumstances, given the expert’s inability to make recommendations to the court regarding the children’s best interests.

It may be that an Evaluative Triage under Practice Note 8 would be better suited to the high conflict nature of these proceedings and the parties’ tendency for protracted disputes.

However, we leave to the case management judge the determination of the best way to resolve the disputes and move this litigation forward in the best interests of the children, bearing in mind that the orders issued to date are only interim in nature and that at some point there will have to be either a settlement or a trial to finally resolve the parenting situation . 10 The appeal is dismissed and the matter is remitted to the case management judge for further determination . [Emphasis in bold added]. [ 26 ] On December 8, 2020, four days after the Court of Appeal’s decision was released, counsel for the father sent me a letter, which stated the following: Further to the above noted matter and your decision of August 13, 2020, Your Ladyship had requested a review of the parenting regime once the Reunification Counselling had commenced.

Reunification Counselling has commenced, and I believe Dr. Froberg has provided a report to the Court regarding the progress. There is no current parenting Order and we would like to

schedule an appearance before Your Ladyship to deal with interim parenting and to review the Reunification Counselling. Given that the matter was originally set to be reviewed in late October 2020, we would be most grateful if we are able to

schedule that appearance prior to the Christmas break. [ 27 ] By this time, I had received the Court of Appeal’s direction remitting the matter back to me for further determination and Dr. Froberg’s Interim Report of Parent-Child Reunification Therapy dated November 26, 2020 (the “Interim Report”). [ 28 ] The Interim Report set out how the therapy was proceeding. With respect to the assessment of the mother’s readiness and willingness to support reunification efforts, the father included the following comment from Dr. Froberg in his affidavit: “Based on her comments and actions, Ms.

O’Driscoll does not appear to have accepted the validity and appropriateness of the Reunification intervention and is not indicating that she is willing to cooperatively participate in the process.” [ 29 ] Considering the Court of Appeal’s direction remitting the matter back to me for further determination, and its comments that

i) the parenting

schedule had expired, ii) a new parenting plan needed to be considered afresh, and iii) a PN8 may be better suited to this matter than a PN7, and considering Dr.

Froberg’s Interim Report and her assessment regarding the mother’s willingness to cooperate, as well as my own finding (affirmed on appeal) that the mother was in contempt of court for breaching two prior court orders related to parenting, I found that the matter was urgent and that it was in the best interests of the children to convene a case management meeting before the Christmas break to address the interim parenting issues and for the parties to bring me up-to-date on their progress with the PN7 Reunification Therapy. [ 30 ] In my view, a reasonable person properly informed and viewing the matter realistically and practically would have come to the same conclusion. [ 31 ] I sought the necessary approvals from court administration to convene a case management meeting the week before the holidays.

As a result of the pandemic, limited staff resources and the limited number of codecs necessary to connect to WebEx and the FTR system, the only available date for me to hear the matter was December 15, 2020. [ 32 ] I note that the week of December 14 to 18 was the last regular sitting week of the year.

Although the bias application states that “Public Service announcements confirm that the Queen’s Bench is sitting up until December 23, 2020”, this information is incorrect - the last regular sitting day was December 18, 2020. [ 33 ] As outlined in the applicant’s affidavit, which includes as exhibits the email correspondence exchanged between counsel and my judicial assistant, my judicial assistant contacted counsel for the parties on December 10, 2020 to advise that I was available via WebEx on December 15, 2020 at 12:45 pm for one hour. [ 34 ] Counsel for the father, Penny Pritchett, advised almost immediately that she and her client were available and that the mother had new counsel, Renee Miller, whom she included in her reply email to my judicial assistant. [ 35 ] In response, Ms.

Miller advised that she was not available on December 15, 2020 and requested available dates in January 2021. [ 36 ] Ms. Pritchett responded to Ms. Miller, copying my judicial assistant and Mr. Wilson on her reply. She wrote: “I would not like to let this matter go until January as there is no parenting order in place and Mr. Zak has not seen his children for many months. As Mr. Wilson is still counsel of record I would ask that we proceed on December 15 and Ms. Miller can assume conduct of the file thereafter.” [ 37 ] Shortly thereafter, Mr.

Wilson explained that he had been discharged by his client: “My client has discharged me and retained other counsel. As such, I have no instructions and cannot act. My intention was only to appear to seek Justice Price’s permission to withdraw, unless excused, because there is insufficient time for me to formally withdraw in the usual course pursuant to the Rules.”

[ 38 ] In response to the above communications, my judicial assistant sent an email to all counsel, on my direction, stating as follows: “I have direction from Justice Price that this matter will be proceeding via webex on December 15 at 12:45 PM. Justice Price advises that Ms. Miller can send an agent to appear on her behalf. An email with the WebEx link will be sent in a separate email.” [ 39 ] Ms. Miller responded to that email as follows: “Regrettably I am self-employed and have no agents that I could offer the court on December 15, 2020. I also presently have no file materials.

I am not sure how to resolve this matter and don’t feel that Ms. O’Driscoll should be required to attend self-represented on December 15, 2020? I could conceivably accommodate a virtual appearance the week of December 21?” [ 40 ] In response, my judicial assistant sent a further email to all counsel communicating my directions: “Justice Price has been made aware of counsels’ responses regarding their respective availability. There is no other availability as next week is the last sitting week before the holidays. She has advised that the matter will proceed at 12:45 pm on Tuesday, December 15, 2020.

WebEx information has now been sent to counsel – please ensure that your respective client’s receive the WebEx information to connect as well.” [ 41 ] On December 14, 2020, the day before the scheduled case management meeting, Ms. Miller sent me a letter attaching a draft of her client’s bias application and advised me of her dates of availability for the bias application to be heard. [ 42 ] The case management meeting proceeded as scheduled on December 15, 2020. [ 43 ] At the bias hearing in January, Ms. Miller argued that the case management meeting should not have proceeded because:

i) it was not urgent, and ii) the mother did not have the benefit of Ms. Miller at the case management meeting to give her legal advice. [ 44 ] Notwithstanding the fact that I made it very clear prior to and at the case management meeting that I found that the matter was urgent, Ms. Miller continued to characterize the December 15, 2020 case management meeting as “non-urgent”.

When I asked her why she characterized it in this way, she explained that it was because the meeting had not resulted in any court orders and I had scheduled the next case management meeting for February 8, 2021. [ 45 ] Despite the fact that I did not grant the relief sought by the father after the December 15, 2020 case management meeting and adjourned the matter to February 8, 2021, at the time of booking, for the reasons explained above, the matter was pressing and urgent. I declined to make an order at the December case management meeting based on the mother’s assurances that she was cooperating with Dr.

Froberg and would continue to be cooperative, thereby mitigating the need for a court order. She also told me that she believes in the reunification process. I asked Dr. Froberg to provide me with a report by the end of January after her further meetings with the children.

I still anticipate receiving that report before the February 8, 2021 case management meeting. [ 46 ] In my view, a reasonable person properly informed and viewing the matter realistically and practically would not have found that the failure to grant a court order after the case management meeting was evidence of lack of urgency in relation to the meeting, or evidence of bias. In fact, it could be said the failure to grant a court order is evidence of the opposite, in that I elected to trust the mother’s assurances regarding her cooperation with the reunification process. [ 47 ] Ms.

Miller also raised in argument, as evidence of bias, that the parties had received detailed outlines from Dr. Froberg on December 4 and follow-up communication on December 8, yet they were still required to attend the case management meeting. What Ms. Miller did not know in making this allegation is that the Court did not receive these communications from Dr. Froberg. I was unaware of the information Dr.

Froberg had sent to the parties and guided myself instead in accordance with the Court of Appeal’s decision: that the matter was remitted back to me and that it needed to be addressed as soon as possible since the prior parenting order had expired. Accordingly, I concluded the case management meeting was urgent. In my view, a reasonable person properly informed and viewing the matter realistically and practically would have come to the same conclusion. [ 48 ] Ms.

Miller also argued that a reasonable apprehension of bias exists because I ordered the mother to attend in the absence of her new counsel. [ 49 ] As earlier outlined, Mr. Wilson was discharged on December 8, 2020. This was unknown to me until after I advised counsel regarding my availability for a case management meeting on December 15, 2020. Despite Ms. Miller advising she was unavailable, Mr. Wilson indicated he would be in attendance, and he remained counsel of record. [ 50 ] Given the urgency of the matter, and knowing that Mr.

Wilson would be in attendance, I found that it was reasonable to proceed without Ms. Miller. [ 51 ] In sum, I find that a reasonable person properly informed and viewing the matter realistically and practically would not conclude based on the foregoing that I could not case manage this matter fairly. iii. Dr. Froberg’s Attendance at the December 15, 2020 Case Management Meeting [ 52 ] Although not raised in the bias application itself, counsel for the mother argued at the bias hearing that a further reasonable apprehension of bias could be drawn from the fact that Dr.

Froberg attended the December 15, 2020 case management meeting at my invitation. Counsel said that it took the parties by surprise that Dr. Froberg was present at that meeting. Counsel went on to state:

“It’s not uncommon in the psychological literature for experts to become aligned with one party or another, and it is increasingly problematic when that expert is engaged in private conversations with the Court. I understand Dr. Froberg was contacted by the Court via phone, was requested to attend to that appearance and none of that information was provided to the parties ahead of time. It raises the question to what extent those conversations and the extent to what conversation was had with Dr. Froberg prior to that December 15 th Court appearance.” [ 53 ] In reply, counsel for the father, Ms.

Pritchett, advised the Court that Ms. Miller had communicated with Dr. Froberg about my alleged communications with the expert and had been advised that the only contact was with my judicial assistant who asked her to appear. [ 54 ] I asked Ms. Miller to confirm Ms. Pritchett’s comment, i.e. that she knew that the communications were only between my judicial assistant and Dr. Froberg. Ms. Miller replied to say “there was a telephone call followed by an email.

I don’t have the contents of the telephone call.” I asked her to again confirm her understanding that the communications were just between my judicial assistant and Dr. Froberg to join the case management conference dealing with parenting. Ms. Miller responded: “Yes, my Lady, I appreciate that would have been on direction from the court.” [ 55 ] I find Ms. Miller’s comments to be a concerning challenge of my judicial ethics.

Despite having confirmed for herself that the communications were not with me, but rather with my judicial assistant, and that they were nothing more than an invitation to join the case management meeting, counsel still persisted in raising this issue in oral argument to support an allegation of bias or a reasonable apprehension of bias. [ 56 ] Asking Dr. Froberg to attend to speak to her report, even as a last-minute request, is not evidence of bias. Notwithstanding the parties’ surprise, it is not uncommon for court appointed experts to attend court to speak to their reports.

In this case, as earlier set out, Dr. Froberg had prepared and provided the Court with her Interim Report. That Interim Report was received on December 4, 2020, after I received the Court of Appeal’s decision. As set out in Dr. Froberg’s report, she raised a concern with respect to the mother’s cooperation with the reunification therapy. I did not have the benefit of the December 4 th and 8 th letters that were sent to the mother and father. In any event, I wanted to hear from Dr.

Froberg as to how the Parent-Child Reconciliation and Reunification therapy was coming along and determine whether the parties needed me to address some of the issues raised in the Court of Appeal’s decision. [ 57 ] I find that a reasonable person properly informed and viewing the matter realistically and practically would not conclude based on the foregoing that I could not case manage this matter fairly . iv. Unwillingness to Consider

Schedule of Experienced Counsel [ 58 ] Although it was not raised in oral argument, counsel for the mother alleged in the bias application that I was “unwilling to consider the

schedule of an experienced counsel (15 year call) who works full-time, and was unable to accommodate a last minute, non- emergency one hour case management appearance during the busiest week of the year before Christmas, it begs the question of how does the court anticipate being part of the solution to guard against the attrition of women lawyers who for the first time will have the ability to practice law part-time in 2021.” [ 59 ] As already set out herein, in my view, this was an urgent matter, and dealing with urgent matters is what the Court does on a daily basis. The fact that Ms.

Miller was not able to attend is not relevant in the face of the urgency of the matter and the fact that her client, along with her former counsel who remained counsel of record, was able to attend. [ 60 ] This Court has the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between their parents. [ 61 ] In the circumstances of this case, I found that it was in the children’s best interests that the case management meeting proceeded to address the urgent parenting issues, even if it meant proceeding without Ms. Miller.

I further conclude that a reasonable person, properly informed and viewing the matter realistically and practically, would not conclude that I could not case manage this matter fairly. III. Conclusion [ 62 ] In conclusion, I find that the mother has not met the high burden to provide cogent evidence in support of her allegation of bias or reasonable apprehension of bias. [ 63 ] The mother’s application to have me disqualified as case manager is dismissed. [ 64 ] As the successful party, the father is entitled to costs.

If counsel cannot resolve the issue of costs, counsel for the father shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the mother shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the father’s costs submissions. All submissions to be filed and copies provided to me through my judicial assistant. Heard on the 18 th day of January, 2021. Dated at the City of Calgary, Alberta this 1 st day of February, 2021.

J.C. Price J.C.Q.B.A. Appearances: Penny Pritchett, Knight & Pritchett for the Plaintiff/Respondent Renee Miller, Calgary Family Law Associates for the Defendant/Applicant