E.L. v. M.L., 2018 BCPC 416

Citation: E.L. v. M.L. 2018 BCPC 416 Date: 20180108 File No: F1326771 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.L. APPLICANT AND: M.L. RESPONDENT ORAL RULING RE APPOINTMENT OF CHILDREN'S COUNSEL OF THE HONOURABLE JUDGE P.R. MEYERS Counsel for the Applicant: R. Taylor and V. Law Appearing in person: M.L. Counsel for the Children, M.A.L., L.L., and I.L.: S. Narbonne

Place of Hearing: Richmond , B.C. Date of Hearing: January 4, 2018 Date of Judgment: January 4, 2018 [ 1 ] COURT: Under s. 203 of the Family Law Act , provision is made that: The Court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the Court is satisfied that (

a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and (

b) it is necessary to protect the best interests of the child. [ 2 ]

Section 203 stands on its own but, of course, incorporates s. 37, which is the one that talks about the best interests of the child. I have been presented with the case of B.J.G. v. D.L.G. , a Decision in 2010 by the Yukon Supreme Court, page 44, which was made by the well-known and respected Judge Martinson and Judge Rogers, PCJ, in K.L.G. v. E.J.G.K. , [2013] BCSC 2030. Both of those cases dealt with applications by Counsel under s. 203 asking to be appointed by the Court to represent the children involved in their case.

Both Judges explain the meaning, the requirement and the threshold levels for s. 203(1) of the Family Law Act . [ 3 ] I have been involved in this particular case, E.L. (“Ms. L.”) versus M.L. (“Mr. L.”), for a long time and the File itself has been before the Courts also for a long time, I think about three years. When I listen each time to the Case, I am always struck by the divergence of views by Mr. L. and Ms.

L. as to everything, including what conversations they have had with the children, in terms of what the children say, in terms of allegations of what one says the other has done and what the other one says the other one has done. [ 4 ] There have been very few occasions, and I do not have the File in front of me, but very few occasions where I was able to write down that the parties agree on this or parties agree on that. It has been constant disagreement between the parties as to what are the facts in this case. [ 5 ] Ms. Taylor is quite correct. We are on the verge of almost finishing. There is one day left.

In my view, we are not going to finish on the next day. Ms. L. to be giving her evidence and then cross. Then there is a detective who has a little bit left for exam in chief and then has to be cross-examined. [ 6 ] An issue has now developed with the potential reliability of Dr. Posthuma's Report. It has been brought to my attention that there is a question now whether this case, and what his opinion was in this case and as well as some other cases. Whereas there might be some legitimate grounds for the B.C. Psychologists Society to provide an opinion.

I am not sure where that is going to end up going. [ 7 ] The children have been interviewed and interviewed. They have been interviewed by police, by social workers and by Dr. Posthuma. [ 8 ] Where I am at now, is I have Counsel who has come forward, Ms. Narbonne, who says she is prepared to act on behalf of the three children in this case. She has applied to this Court for an Appointment under 203 to be the lawyer for the children and says that the conflict between the parties is so severe that it has significantly impaired the capacity of the parties to act in the best interests of the children. [ 9 ] Ms.

Narbonne has been frank and says she has not read the files or the reports so I do not, with the greatest of respect to Ms. Narbonne, I am not able to accept her view that the parties are in such severe conflict that it significantly impairs the capacity of the two of them to act together in the best interests of the children. I have my own experience in this case, and I have come to that conclusion myself, quite apart from Ms. Narbonne's opinion, with respect. [ 10 ] The part of Ms.

Narbonne's submission to me that is important, though, is she says that she has spoken for about three hours with each of the children in person and she has done that as of yesterday. [ 11 ] One of the issues that has been developing in this Case is the communication with the children by the father.

Mom says, through her lawyer, that the father has gone beyond the bounds of alienation and what he has done is provided them with false information about the Court Proceedings, about their mother, and it has caused one daughter, the oldest one, M.A.L., to refuse to have anything to do with Mom and has had conversations with the younger children who are, I think, 11 and 10, to be moving in that direction as well. [ 12 ] What Ms.

Narbonne says she is able to do, if she is Appointed as Counsel, is act as almost like a cone around the kids so that she would be the one to carefully say what is going on in an objective way in the Court Proceedings so the kids know, in an honest and true way, what is going on and in a way that can be told to them by an independent person who is not trying to get the father's position across or the mother's position across in a way that is more favourable to them.

She also is the newest person in terms of giving me where the children are at now and voicing their opinion, as well as representing to the Court what their thoughts are. That is particularly important given that last-minute comment about the possibility that I am going to have some issues raised with Dr.

Posthuma's Report, which was and is, I think, a significant part of the evidence before me. [ 13 ] I find that the parents, from my own experience in watching this Case and looking at some of the background in this Case over the last few years, is such that whether it is deliberate or not, the parties are significantly at odds in all of their dealings with each other and with their children, that it has impacted their capacity as parents to act in the best interests of the children. They might each think

they are acting in the best interests of the children but on the basis of everything that I have heard thus far, I am concerned that I do need more and more information, as I am getting towards the end of this Case.

If it is available, as to what are the true state of affairs in terms of what the mom has done or what the dad has done, I need that information. [ 14 ] It would help me and it would protect the children in having Counsel Appointed so that they can be put in this so-called “protective cone”, but get to know what is going on in the Court, which would give them some peace of mind, and also to give the Court a very current view of how they see things in terms of what they want.

Their interests are to be considered. [ 15 ] The fact that they are very young is something, obviously, I have to consider when I am listening to their opinions through Counsel but that is not for me to disregard everything they have to say or what Counsel has to say. [ 16 ] In my view, I want to bring this trial to close. It has to be brought to a close. I am hoping it will not delay, inordinately long, the conclusion of this case but I find that it is in the best interests of the children that the Application be granted. [ 17 ] I have considered the two cases given to me.

In those two cases, the state of affairs had not yet reached the stage where the conflicts were so severe as to significantly impact their ability to act in the best interests of the child. In this case, I find that that threshold has been reached. [ 18 ] Therefore, I do Appoint Counsel, Ms. Narbonne, to be allowed to act as Counsel for the two children. (ORDER APPOINTING CHILDREN'S COUNSEL CONCLUDED)