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CUSTODY AND ACCESS - Practice and procedure

Monday, June 14, 2021 @ 9:26 AM  


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Application by the defendant mother to have the judge removed as case management justice. The two children of the marriage were 2 and 5 years old. This was the mother’s second recusal application in four months. This second application arose after the case management justice found on March 12, 2021, that the mother was in contempt of a February 2021 order and that it was in the best interests of the children to be immediately removed from her care because of her continued family violence affecting them. Immediately following the March 12, 2021, interim order changing parenting, the children were allegedly abducted by their maternal grandmother and maternal aunt. The children were located 33 days after their abduction and the RCMP had since laid charges against the maternal grandmother and maternal aunt for forcible confinement and abduction of the children. On March 14, 2021, after learning that the children were missing and believed to be in the company of adult relatives, the case management justice sent an e-mail to the mother’s counsel, copied to the father’s counsel, which stated that the justice had learned through a recent CBC news media report that the children were not where they were supposed to be. The justice also stated that she was writing the e-mail to encourage active steps to have the children returned and placed in the care of their father. On March 24, 2021, the mother filed the within recusal application. The mother took the position that the e-mail communication implied that the case management justice had attributed guilt to her. The mother had alleged biased conduct on the part of the justice throughout the entire case management process dating back to August 2020.

HELD: Application dismissed. A reasonable person properly informed and viewing the matter realistically and practically would not have concluded based on the historical proceedings in this case and all the findings that had been made that the case management justice was biased and/or that she would not, consciously or unconsciously, case manage the matter fairly. The mother failed to meet the high burden to prove cogent evidence in support of her allegations of bias or reasonable apprehension of bias. The application was therefore dismissed. However, the justice felt that it would be in the best interests of the children to step down as case management justice. The ongoing dispute as to whether the justice should hear matters and the mother’s persistence in not following court orders and/or appealing them was a waste of valuable time and the parties’ and the court’s resources. The justice preferred that the parties focus and direct their attention on the needs and best interests of the children and come to a final resolution for their parenting arrangement.

Zak v. Zak, [2021] A.J. No. 626, Alberta Court of Queen's Bench, J.C. Price J., May 7, 2021. Digest No. TLD-June142021001