Bissky v MacDonald, 2020 ABKB 774

Court of King’s Bench of Alberta Citation: Bissky v MacDonald, 2020 ABQB 774 , 2020 ABKB 774 Date: 20221122 Docket: FL01 12939 Registry: Calgary Between: Stephanie Anna Bissky Applicant - and - John Joseph MacDonald Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [1] Stephanie Anna Bissky [Ms. Bissky] was declared a vexatious litigant on May 22, 2019 in a decision reported as Bissky vMacleod, 2019 ABQB 378 [Bissky #3]. Ms.

Bissky is prohibited from initiating any action or filing any application in the Alberta Courtof King’s Bench, except with permission - “leave” - of the Court.

[ 2 ] On November 18, 2022, Ms. Bissky sent an email to my office that states: ... I am seeking leave to pursue a child support order and an order stating sole guardianship and sole custody. To be clear there isn't a child support order in place. Please see the attached application. [ 3 ] Attached as an Alberta Court of King’s Bench FL-10 form where the orders sought are: “Guardianship of Child FL-34 of FL-35” and “Child Support FL-45”. The other text in the form indicates a 14-year-old child, “TB”, is involved, and: * No child support order exists.

Leave of Court to have a calculation of child support There isn’t a current client support order or calculation. Although the mother has sole custody and sole guardianship there isn’t an order stating this in full. [ 4 ] Then, in a second email sent on November 21, 2022, Ms. Bissky stated: In regards to an order clarifying sole custody and sole guardian the passport office and Canadian travel is advising a court order for clarification. I have attached the wording used by Justice Campbell in her order March 10,2017. Please see attached scan.

My daughter [TB] has been named to Team Alberta for skating and will be traveling with her team both nationally and internationally. As per Justice Rooke's order Oct 27, 2020 the Mother has sole custody and sole guadiaship. [Sic.] [ 5 ] Here it appears Ms. Bissky’s “Justice Rooke’s order Oct 27, 2020” is referencing Bissky v MacDonald , 2020 ABQB 651 , that makes no changes to the custody of TB. Instead, that Decision: 1) refused Ms. Bissky leave to file an application, and 2) varied the Bissky #3 court access restrictions such that Mr.

Bissky pay security for costs prior to taking steps in the Alberta Court of King’s Bench FL01 12939 Action. [ 6 ] This email attaches part of a March 10, 2017 Consent Order between the parties, which has the following provisions regarding custody: 3. The Mother shall have day-to-day care and control of [TB] and shall be: (

A) solely responsible for making all decisions regarding [TB], including but not limited to all decisions related to [TB’s] healthcare, education, religion and activities; and (

B) the sole signing authority for [TB] for all purposes, including but not limited to [TB’s] healthcare, education, religion and activities. 4. The Mother is entitled to apply for a passport and other travel documentation for [TB] without the consent or agreement of the Father. 5. The Mother is entitled to travel with [TB] inside or outside of Canada without the consent or agreement of the Father. [ 7 ] I am treating Ms. Bissky’s correspondence as two leave to file applications: 1. an application for permission to impose a child support order on TB’s father, John Joseph MacDonald [Mr.

MacDonald], and 2. an application for a court order that replaces the March 10, 2017 Consent Order’s provisions in relation to guardianship and custody of TB. [ 8 ] For the reasons that follow, I reject both leave to file applications, but authorize Ms. Bissky to submit a replacement guardianship and custody leave to file application that properly sets out what Ms. Bissky wants, and why she claims that the proposed step(

s) should be authorized. II. Test for Leave to File [ 9 ] “... [A] person subject to court access control is presumed to engage in illegitimate litigation unless the Court is satisfied otherwise. ...”: Re Thompson , 2018 ABQB 87 at para 19 , aff’d 2018 ABCA 111 , leave to appeal to SCC refused, 38204 (14 February 2019). [ 10 ] Permission to initiate litigation or continue stayed litigation both test the merit of court activities on the same standard.

A person subject to court access restrictions must: 1. establish reasonable grounds for the litigation, and 2. depose fully and completely as to the facts and circumstances surrounding the proposed claim or proceeding. [ Re Thompson , 2018 ABQB 87 at paras 19 , 27; VWW v Wasylyshen , 2013 ABQB 327 at para 42 , aff’d 2014 ABCA 121 .] [ 11 ] This threshold, which must be established on a balance of probabilities, is not a high one, and, in many ways, parallels the test for

summary judgment: Re Thompson , 2018 ABQB 87 at paras 19 , 26. The person subject to court access leave restrictions is expected to put his or her “best foot forward” to establish the basis to initiate or continue an action: Re Thompson , 2018 ABQB 87 at paras 26-27. [ 12 ] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new action, application, or other litigation step, a copy of the proposed initiating application: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 13 ] Leave may be granted in part: Latham (Re) , 2018 ABQB 906 ; and Belway v Lalande-Weber , 2017 ABCA 108 at para 10 ,

leave to appeal to SCC refused, 37708 (21 December 2017). [ 14 ] Leave submissions to initiate or continue litigation may also be rejected: 1. where the materials do not satisfy the criteria set out in the court access restriction order ( Re Gauthier , 2018 ABQB 99 ; Re Botar , 2018 ABQB 193 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 , leave to appeal to SCC refused, 38267 (31 January 2019); Re Thompson , 2018 ABQB 355 , leave to appeal to SCC refused, 38266 (31 January 2019); Association of Professional Engineers and Geoscientists of Alberta v Drover , 2021 ABQB 511 ; Richardson v MacDonald , 2022 ABQB 274 ); 2. if the submissions exhibit indicia of abusive litigation ( ET v Calgary Catholic School District No 1 , 2017 ABCA 349 at para 12 , leave to appeal to SCC refused, 38081 (8 November 2018); Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 ; Re Botar , 2018 ABQB 193 ; Trinity Place Foundation of Alberta v Templanza , 2019 ABQB 45 ; Onischuk (Re) , 2019 ABQB 229 ; Fletcher v Davidson & Williams LLP , 2019 ABQB 396 ; Ubah v Canadian Natural Resources Limited , 2021 ABQB 208 ; Knutson (Re) , 2021 ABQB 367 ; McMunn v Hok , 2021 ABQB 550 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 ; Rana v Rana , 2022 ABQB 79 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 97 ; Rana v Rana , 2022 ABQB 111 ; Rana v Rana , 2022 ABQB 114 ; Fiset v Feeney , 2022 ABQB 211 ; Hayden v Alberta Health Services , 2022 ABQB 335 ; Richardson v MacDonald , 2022 ABQB 274 ; Royal Bank of Canada v Anderson , 2022 ABQB 354 ); Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 498 ); 3. where the abusive litigant refuses to provide the proposed filing ( Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); 4. where the abusive litigant provides false information or fails to provide necessary information ( Re Gauthier , 2018 ABQB 99 ; Rana v Rana , 2022 ABQB 114 ); 5. where the abusive litigant fails to provide materials that are required to evaluate the proposed litigation step, such as a transcript of a proceeding proposed for appeal ( Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 ; Rana v Rana , 2022 ABQB 111 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); and 6. where the Court has no jurisdiction over the matter ( Hayden v Alberta Health Services , 2022 ABQB 335 ).

III. Analysis and Conclusion [ 15 ] Ms. Bissky’s leave to file applications are rejected on multiple bases. First, Ms. Bissky has not provided the affidavit under oath as required by Bissky #3 at para 58 (4). Second, Ms. Bissky’s claim that “... there isn’t a child support order in place ...” if factually false. The March 10, 2021 Consent Order states at paragraph 10(D): ... commencing August 1, 2021 and continuing until further Order of the Court, the Father shall pay

section 3 child support to the Mother based on his 2020 Guideline Income, which amount of

section 3 child support shall be recalculated annually in accordance with paragraph 32 of this Consent Order. [ 16 ] That makes Ms. Bissky’s claim that there is no child support order in place both: 1) false, and 2) an apparent collateral attack on the Consent Order. This is not the first time that Ms. Bissky has attempted to challenge the Consent Order to which she had previously agreed. Attempts to revoke the Consent Order were rejected in Bissky v MacDonald , 2020 ABCA 138 , confirmed Bissky v MacDonald , 2020 ABCA 242 .

Furthermore, there was an additional collateral attack against the Consent Order that occurred in Bissky v MacDonald , 2020 ABQB 651 [ Bissky #4 ], when this Court rejected an earlier groundless leave to file application made by Ms. Bissky. In Bissky #4 , I adopted the characterization of Ms. Bissky’s litigation as an attempt to harass Mr. MacDonald: Bissky #4 at paras 4-5. [ 17 ] As for an application for custody over TB, the terms of the March 10, 2017 Consent Order establish that Ms. Bissky is the only guardian for TB. What Ms.

Bissky has supplied is not a basis for this Court to grant leave in relation to guardianship of TB. In fact, what Ms. Bissky’s leave to file application seeks is nothing but the status quo approved by the Consent Order in place. [ 18 ] When a leave to file application is rejected, that is final: Bissky #3 at para 58 (6). There is no appeal of this decision to the Alberta Court of Appeal: Rule 14.5(4). Ms. Bissky may, however, seek leave from the Supreme Court of Canada. [ 19 ] I will leave one exception to that prohibition on further applications. In her November 21, 2022 email, Ms.

Bissky appears to indicate that the terms of the Consent Order were not considered an adequate basis for unidentified government or other actors to authorize a passport and/or travel arrangements. If Ms. Bissky seeks leave that this Court issue an order with different terms to address that reported issue or issues, then Ms. Bissky should provide myself or my designate: 1. a draft order that contains the specific terms and language that Ms.

Bissky proposes should replace the Consent Order guardianship provisions; and 2. an affidavit that includes documentation, presumably from the government actors indicated in the November 21, 2022 email, that:

a) indicates that the Consent Order was not adequate proof of Ms. Bissky’s role in relation to TB, and

b) identifies what kind of information and/or language is necessary in a court order that satisfies the government actors’ requirements. [ 20 ] Ms. Bissky may be served this Decision by email to stephanie.bissky@telus.net.

Dated at the City of Calgary, Alberta this 22 nd day of November 2022. J.D. Rooke A.C.J.C.K.B.A. Appearances: Stephanie Anna Bissky, Self-Represented Litigant