Bell v. Hagger, 2013 BCSC 1606

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bell v. Hagger, 2013 BCSC 1606 Date: 20130604 Docket: 98-3512 Registry: Victoria In the Matter of the Patients Property Act, R.S.B.C. 1996,

Chapter 349 Between: Angela Jeanne Bell Petitioner And: David Hagger Respondent Re: Martin David Hagger Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Plaintiff: R.S. Gill Appearing on his own behalf: D. Hagger Place and Date of Trial/Hearing: Victoria, B.C. June 4, 2013 Place and Date of Judgment: Victoria, B.C. June 4, 2013 [ 1 ] [1] THE COURT: The applicant, Mr. David Hagger, seeks leave to apply to vary orders previously made in this matter.

His eventual goal, should he be successful, is to increase the number and duration of his access periods with his severely autistic and mentally disabled adult son, Martin Hagger. For ease of reference, I will refer to Martin Hagger as “Martin”. [ 2 ] Ms. Angela Bell, Martin’s mother and legal committee, opposes the application. [ 3 ] Mr. Hagger appears to genuinely believe that what he is trying to attain is in Martin’s best interests. I, on the other hand, having reviewed the materials filed on this application and having heard the submissions of both side to this dispute, do not share Mr.

Hagger’s belief and, for the reasons that follow, decline to grant the order being sought. [ 4 ] The background and history of this litigation has been told a number of times in earlier decisions of this court. In the most recent judgment, one from the spring of 2009, Mr. Justice Macaulay denied Mr. Hagger’s application to vary the order of Madam Justice Quijano pronounced in July of 2002 and amended in April 2003 that governs Mr. Hagger’s access with Martin. The variation Mr. Hagger sought would have resulted in him obtaining greater access time with Martin. Justice Macaulay also denied Ms.

Bell's application to prohibit Mr. Hagger's use of “facilitated communications” during his visits with Martin. After addressing these two substantive issues, Justice Macaulay then considered Ms. Bell’s application pursuant to s. 18 of the Supreme Court Act , R.S.B.C. 1996, c. 443, to have Mr. Hagger declared a vexatious litigant and prohibited from initiating any further legal proceedings relating to Martin, without first obtaining leave of the court. Justice Macaulay acceded to Ms. Bell’s application and at paras. 47 and 48 of his reasons, indexed as 2009 BCSC 327 , he explained: [47]

Section 18 orders are unusual in nature. The Court of Appeal has interpreted the

section as sufficiently broad to apply to repetitive, vexatious or frivolous applications within a proceeding: see S. v. S. , [1998] B.C.J. No. 2912 (C.A.), at para. 13 . I also have an inherent jurisdiction to control vexatious or frivolous application within a matrimonial proceeding as they are an abuse of the court’s process. It is not open to the respondent to keep litigating the same issue over and over again.

I am satisfied that I should make an order under s. 18 prohibiting further applications by the respondent unless he first obtain leave of the court. [48] Any application to vary a final order must be based on a material change of circumstances. Before bringing any future application to vary, the respondent must first obtain leave, by demonstrating to a judge of the court that there is a prima facie , or arguable, case that there has been a material change in circumstances. In the result, the respondent must obtain leave before delivering to the petitioner any

notice of an application to vary the access provisions set out in the July 2002 order of Quijano J., as amended by her in 2003. Issue [5] The question before me today is whether there is a prima facie or arguable case that there has been a material change incircumstances since 2009? Discussion [6] The concept of a “material change in circumstances” was addressed in Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27, where at paras. 12 and 13, McLachlin J. (as she then was) explained: [12] What suffices to establish a material change in the circumstances of the child?

Change alone is not enough; the change must havealtered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had thecircumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change shouldrepresent a distinct departure from what the court could reasonably have anticipated in making the previous order.

"What the court isseeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G.

McLeod, Child CustodyLaw and Practice (1992), at p. 11-5. [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [7] Although Martin is not a “child” per se, in my view the Gordon v.

Goertz principles are applicable to the question before mebecause the focus of this application is the parties’ son Martin and his best interest. [8] In arguing that there is evidence of a material change in circumstances, Mr. Hagger points to Martin's admission to hospital lastyear. Apparently Martin suffered a serious medical episode that necessitated his hospitalization. Whether the incident was because of amedication overdose or misdiagnosis by his health care providers is unclear. Nevertheless, at some point during his hospital stay, he wastransferred to its intensive care unit. Mr.

Hagger says that on account of this medical situation and the time Martin spent in hospital,Martin now suffers from a swallowing disorder of some sort. The portions of various affidavits that Mr. Hagger drew to my attention donot satisfy me that Martin suffers from a swallowing disorder. There may be an issue regarding Martin’s ability to swallow and that maywell need to be investigated by his health care providers; however, at this point there is no evidence of a medical diagnosis from aqualified medical professional before me. In my view, what Mr.

Hagger submits and attempts to rely upon does not amount to evidenceof a material change in circumstances. [9] Mr. Hagger also says that Martin is hurting himself on a more frequent basis and that this behaviour is likely on account offrustration or emotional trauma caused by his admission to hospital. That may be true; however, beyond Mr. Hagger’s own words, thereis little evidence to support this assertion. [10] In support of his overall argument that there has been a change in circumstances, Mr. Hagger points to two letters that areattached as exhibits to his affidavit sworn on 23 May 2013.

One is authored by Mr. Drew Van Brunt and the other by Dr. Gloria Burima.Counsel for Ms. Bell objected to the admissibility of these letters, arguing they constitute impermissible opinion evidence. While Iaccept what Mr. Gill has said with respect to the admissibility of these letters, having read them, I offer the following observations.Mr. Van Brunt is a social worker with an organization or company called “Bounce Back Separation and Divorce Strategies”. Betweenthe fall of 2001 and the spring of 2002, he provided access supervision for Mr. Hagger and Martin.

The supervised access was a term ofJustice Quijano’s 2002 order. In his letter dated 17 February 2013 that is attached to Mr. Hagger’s affidavit, Mr. Van Brunt explains: …

h) I have also observed Martin out in the community away from his residence four times since 2009. During each and subsequentchance meeting I have noticed the wounds to Martin’s SIB [self-injurious behaviour] to be greater in number and more severe. Thereappeared to being (sic) increasing number of scabs on his wrists and forearm, as well as greater patches of hair loss near his temples. …

l) It is apparent from my meeting on February 5, 2013, with Martin, to the previous meeting in the Fall of 2011 that Martin’sappearance and demeanor seems more fragile in that he (sic) thinner, has paler complexion, and his SIB appears more severe - largerwound areas on his wrist and forearm, and there are numerous patches of hair loss on the sides of his forehead. [11] Dr. Burima, is a developmental and clinical consulting psychologist.

In her letter dated 25 March 2013 that is attached to Mr.Hagger’s affidavit, she provides what she describes as an “expert opinion as to the nature of the relationship between Martin and hisfather Mr. David Hagger”. Dr. Burima states: What makes Mr. David Hagger’s time and support of Martin even more critical, is that they spent a great deal of time together duringMartin’s formative years, during which time Martin formed an attachment bond with his father, which cannot be fulfilled by someoneelse and which also appears to have been compromised by Mr.

Hagger’s reduced access time with Martin since the Court Orders of 2002and 2003. It is also my expert opinion that in order for Martin to maintain the necessary attachment to his father, Mr. David Hagger, it is importantthat he has enough weekly access - certainly more than his present access of 18 hours per month. It is also my expert opinion that Martinappears to have suffered because of lack of contact with his primary attachment figure, his father.

[ 12 ] I have two comments about the letters from Mr. Van Brunt and Dr. Burima. First, in my view they are not admissible evidence on this application. They are simply letters that are attached to Mr. Hagger’s most recent affidavit. There is a notation on each letter indicating they were signed in the presence of a lawyer, but I do not take that to mean they are the equivalent of a sworn affidavit. Nor, in my opinion, can these letters be considered as expert reports. My second comment is that even if these letters constituted some type of admissible evidence, I do not find them persuasive. While Mr.

Van Brunt has seen Martin four times since 2009, he fails to describe the length or context of those encounters. In my view, the evidentiary value of Mr. Van Brunt’s letter would be minimal, even if it was admissible. As for Dr. Burima’s letter, having read it I am left to wonder on what basis she reached her opinions. She does not indicate whether she has recently observed or interviewed Martin and/or Mr. Hagger. She provides no foundation for her conclusion that Martin is suffering; she does not explain how he is suffering; and it would appear she has erroneously concluded that it was Mr.

Hagger who was Martin’s primary attachment figure. I say “erroneously concluded” because this is not the finding of fact that other judges of this court have reached on this issue. On the whole, I find myself agreeing with counsel for Ms. Bell when he submits that it would appear that Dr. Burima is being more of an advocate as opposed to an impartial expert in this case. Decision [ 13 ] The threshold question before me is whether there is a prima facie or arguable case that there has been a material change in circumstances. On the admissible evidence before me, I find that threshold has not been met.

Therefore, I am denying Mr. Hagger’s application. [ 14 ] Before concluding my reasons I should add the following. If I had found a prima facie or arguable case that there has been a material change in circumstances, then I would still have denied Mr. Hagger leave to apply, on account of his failure to comply with an earlier court order regarding costs. In 2009, Justice Macaulay denied what was essentially the same application that is before me today. In doing so, Justice Macaulay ordered Mr. Hagger to pay Ms. Bell approximately $14,000 in costs.

There is still approximately $5,000 owing on that order. [ 15 ] This situation is somewhat analogous to the situation in Koch v. Mitchell , 1999 BCCA 16 , where Donald JA. at para. 10 endorsed the following observations of the trial judge: [15] It is appropriate to prevent Mr. Koch from bringing further motions until he pays the outstanding costs of the trial ordered on May 17, 1996. In Canadian Express Ltd. v. Blair [citation omitted], Montgomery J. observed that there is a general principle "that a cost order must be paid before that party can proceed further before the court.

Surely a party subject to a cost order cannot avoid that order by bringing another action". [ 16 ] Mr. Hagger says he is of limited financial means and is focussing all of his resources and energy on doing what he believes is best for Martin. It is for these reasons, explains Mr. Hagger, that he has not fully complied with the outstanding order for costs. Mr. Hagger’s argument and explanation is not persuasive, and I find the above-noted observations from Koch apposite to the case before me. In my view, it would be unfair to allow Mr.

Hagger to re-litigate an issue that has been considered a number of times by this court and to have Ms. Bell put to the expense of having to respond yet again when there remains an outstanding and unpaid order of costs. (SUBMISSIONS RE COSTS) [ 17 ] THE COURT: Mr. Hagger’s application has been unsuccessful. Ms. Bell is the successful party on this application. I see no reason why she should not get her ordinary costs. I will grant that order. I will also -- go ahead, Mr. Gill. You have something to say? [ 18 ] MR. GILL: I was going to ask if you would dispense with Mr.

Hagger's approval to the written form of the order. I can certainly see that he gets a copy when it's entered. (SUBMISSIONS RE ORDER) [ 19 ] THE COURT: Okay, so it is agreed. The final term of my order is that the necessity of having Mr. Hagger sign the order is dispensed with. “G. R. J. Gaul J.”