ZAK v ZAK, 2021 ABQB 360


13.1: When one judge may act in place of or replace another

Case Summary

This was an Application requesting removal and replacement of a Case Management Justice on the basis of bias or improper conduct, pursuant to Rule 13.1. The Application arose in the context of a highly contentious family law matter and was the second of its kind in four months.

The Application was brought following receipt by counsel of an email from the Case Management Justice referencing a media report that the two children of the marriage had been abducted and were believed to be with two adult relatives. At a hearing conducted on the day of the abduction, and before ordering the Applicant to remit the children to their father, the Case Management Justice had been informed by the Applicant that the children were in the care of the Applicant’s mother. The email ‘encouraged’ counsel to contact the Applicant and encourage her to take immediate steps to have the children returned. In the Application that followed, the Applicant asserted that the email improperly assumed guilt on the part of the Applicant and, together with other alleged improper conduct, showcased a pattern of bias against the Applicant.

In hearing the Application, the Case Management Justice noted that Rule 13.1 is more typically applied in situations where a Judge is ill or passes away before rendering a Decision. Nevertheless, she applied the test for recusal and reasonable apprehension of bias (would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude that it is more likely than not that the decision maker, consciously or unconsciously, would not decide fairly?) to conclude that no reasonable apprehension of bias had been shown. In reaching this decision, the Case Management noted that there is a strong presumption of judicial impartiality and neither simple allegations of bias, nor single or repeated unfavourable results, are, without more, sufficient to displace the presumption.

Though the Case Management Justice concluded that neither the email, nor any of the other grounds of bias, were sufficient to justify her recusal, she ultimately determined that, given the Applicant’s singular focus on this point and anticipated future Applications of the same variety, it would be preferable from a procedural and efficiency standpoint to recommend that a new Case Management Justice be appointed.

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