Lawyer argues girls who were allegedly kidnapped should return to mom

But the father’s lawyer said the Court of Queen’s Bench judge was well within her powers to switch custody based on O’Driscoll Zak’s ongoing conduct

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The change of custody of two Cochrane girls that allegedly triggered their abduction at the hands of their maternal grandmother and aunt should never have happed, their mother’s lawyer argued Tuesday.

Diann Castle told a three-member Alberta Court of Appeal panel it should reverse a March 12 order of Court of Queen’s Bench Justice Johanna Price switching the girls’ custody to their father, Colin Zak.

When Zak went to pick up the girls following Price’s ruling, neither the children nor their grandmother and aunt were anywhere to be found, triggering a month-long RCMP investigation.

The girls were found in B.C. on April 14 and turned over to their father.

The grandmother, Therese O’Driscoll, and aunt, Alison O’Driscoll, were subsequently charged with four offences, including abducting a person under the age of 14.

But Castle told the appeal judges that Price erred when she found her client, Jacqui O’Driscoll Zak, in contempt for not complying with a court-ordered visitation on Feb. 11.

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The lawyer said Price had already decided the case before the March 12 contempt application and she’d never seen a proceeding where custody was switched without a proper hearing.

“She had made up her mind . . . that (O’Driscoll Zak) was in contempt,” Castle said, in seeking a reversal of the custodial decision and an order for an expedited hearing on the issue.

“There was nothing that I could have done on March 12 to change her mind.”

The lawyer said Price “erred in law and denied procedural fairness.”

But the father’s lawyer, Penny Pritchett, said the Court of Queen’s Bench judge was well within her powers to switch custody based on O’Driscoll Zak’s ongoing conduct.

“Ms. O’Driscoll is very clear that she does not want Mr. Zak to have any relationship with their two daughters,” Pritchett said.

“The history of this file is one of parental alienation and contempt of court by Ms. O’Driscoll.”

The appeal judges reserved their decision.

KMartin@postmedia.com

Twitter: @KMartinCourts